SP 7179 Sessional Paper

REPUBLIC OF KENYA
OFFICE OF THE ATTORNEY-GENERAL AND

DEPARTMENT OF JUSTICE
Sessional Paper No. 4 of 2024

on
The National Alternative Dispute Resolution

Policy
PRINTED BY THE GOVERNMENT PRINTER, NAIROBI

Sessional Paper No. 4 of 2024
on
The National Alternative Dispute Resolution

Policy
SESSIONAL PAPER NO. 4 OF 2024 ON THE NATIONAL
ALTERNATIVE DISPUTE RESOLUTION POLICY
Table of Contents
Acronyms .....................................................................................................v
Executive Summary .................................................................................. vii
THE POLICY DEVELOPMENT PROCESS ............................................ xi
1. POLICY CONTEXT ............................................................................1
1.1 Background ........................................................................................ 1
1.1.1 ADR is a major apparatus for access to justice ............................... 1
1.1.2 The normative framework for ADR ............................................2
1.1.3 The National Development Context ............................................6
1.2 ADR Sector Overview........................................................................ 7
1.2.1 Types of ADR mechanisms .........................................................7
1.2.2 The use of ADR practice in different sectors...............................8
1.2.3 Institutional framework in ADR ............................................... 15
2. THE POLICY PROBLEM................................................................. 18
2.1 Conceptual and Definitional challenges and unclear scope of
ADR........................................................................................................ 18
2.2 Legal gaps and challenges ............................................................... 19
Inadequate implementation of existing laws .......................................... 19
2.3 Inadequate and ad hoc Institutional development in the sector ........ 21
2.4.1 Challenges in Arbitration ...................................................... 22
2.4.2 Challenges in Mediation ....................................................... 22
2.4.3 Challenges in Negotiation ..................................................... 22
2.4.4 Challenges in Conciliation .................................................... 23
2.4.5 Challenges in Adjudication ................................................... 23
2.4.6 Challenges with Ombudsman ................................................... 24
2.4.7 Challenges with Alternative Justice Systems ........................ 24
2.5 Linkage and coordination challenges ............................................... 25
2.6 Recognition and Enforcement Challenges ....................................... 25
2.8 Technological gaps ........................................................................... 26
2.9 Gaps in sector regulation and governance ........................................ 26
3. POLICY STRATEGIC FRAMEWORK ......................................... 27
3.1 The Rationale for the policy ............................................................. 27
3.2 Policy Vision .................................................................................... 28
3.4 Policy Objectives .............................................................................. 28
3.5. Guiding principles ........................................................................... 29
3.6 Policy Approach ............................................................................... 30
iii
3.6.1 Human Rights approach ............................................................ 30
3.6.2 Transformative approach .......................................................... 30
3.7 Gender and equality considerations .................................................. 30
3.8 Opportunities .................................................................................... 30
3.8 Risks and assumptions ...................................................................... 31
4. POLICY STATEMENTS ................................................................... 32
4.1 Definitions ........................................................................................ 32
4.1.1 Meanings and definitions of key ADR terms ................................ 32
4.2 The scope of ADR ............................................................................ 35
4.3 Strengthening the Institutional Framework for ADR ....................... 35
4.3.1 The Oversight ADR Body and Practice Area Committees ....... 35
4.3.2 ADR Centres ............................................................................. 38
4.3.3 Judiciary ADR Centre ............................................................... 38
4.4. Strengthening the Legal Framework ............................................... 39
4.5 Strengthening Linkages, Coordination and Harmonization in the
ADR sector …………………………………………………….…40
4.5.1 Regulation and governance ....................................................... 41
4.5.2 Quality and Standards of Practice in ADR................................ 42
4.5.3 Recognition and Enforcement of ADR decisions ..................... 44
4.5.4 Capacity Building ..................................................................... 44
4.5.5 ICT ............................................................................................ 45
4.6 Increasing Availability, Accessibility and Uptake of ADR
services ................................................................................................... 46
4.6.1 Availability ............................................................................... 46
4.6.2 Accessibility ............................................................................. 46
4.6.3 Uptake ....................................................................................... 47
4.6.4 Research .................................................................................... 49
4.6.5 Community of practice ............................................................. 50
5. POLICY IMPLEMENTATION ARRANGEMENTS .................. 50
5.1 National Action Plan ........................................................................ 50
5.2 Resourcing ........................................................................................ 50
5.3 Monitoring and Evaluation ............................................................... 51
5.4 Policy Review ................................................................................... 51
5.5. Annexures ........................................................................................ 52
i. Proposed Amendments to the Arbitration Act, 1995 .................. 52
ii. Draft Construction Adjudication Bill ....................................... 108
iii. Draft Dispute Resolution Bill ................................................... 142
iv
Acronyms
ACRWC African Charter on the Rights and Welfare of the Child
ADR Alternative Dispute Resolution Mechanism/s
AJS Alternative Justice System/s
CAJ Commission on the Administration of Justice
CAM Court Annexed Mediation
CIPK Council of the Imams of Kenya
COFEK The Consumers Federation of Kenya
CPA Civil Procedure Act
CPC Constituency Peace Committee
CSO Civil Society Organization
DRB Dispute Resolution Board
DRC Dispute Resolution Mechanism
ECCEC Electoral Code of Conduct Committee
FKE Federation of Kenya Employers
ICCPR International Convention on Civil and Political Rights
ICESCR International Convention on Economic Social and Cultural Rights
ICMC Institute of Chartered Mediators and Arbitrators
IEBC Independent Electoral and Boundaries Commission
JTF Judiciary Transformation Framework
KAM Kenya Manufacturers Association
KBA Kenya Bankers Association
KEPSA Kenya Private Sector Alliance
KNCCI Kenya National Chamber of Commerce and Industry
LSK Law Society of Kenya
MTP Medium Term Plan
NCIA Nairobi Centre for International Arbitration
NCIC National Cohesion and Integration Commission
PAC Practice Area Committee
PLWD Persons Living With Disability
PPDT Political Parties Disputes Tribunal
v
SAGA Semi-Autonomous State Agency
SDG Sustainable Development Goals
SDRC Strathmore University Dispute Resolution Centre
STF Sustaining Judicial Transformation Framework
TDRM Traditional Dispute Resolution Mechanism
UDHR Universal Declaration on Human Right
UNCITRAL United Nations Commission on International Trade Law
UNCRC UN Convention on the Rights of the Child
vi
Executive Summary
On the 21st of March, 2023 the Cabinet approved this policy proposal
for a National Policy on Alternative Dispute Resolution.
The policy development was initiated on the 27th day of January, 2020,
by the then Honourable Attorney-General (Rtd.) Justice P. Kihara
Kariuki who appointed a National Steering Committee (the Committee)
to formulate a national policy on Alternative Dispute Resolution (ADR).
For a period of One year the Committee conducted comparative
research, and targeted consultation with lead stakeholders and experts in
ADR. The work of the Committee benefited greatly from the extensive
work accomplished through the joint efforts of the Nairobi Centre for
International Arbitration (NCIA) and the Judiciary in developing the
validated draft policy on alternative dispute resolution. In making this
policy proposal, acknowledgment is made recognizing the contribution
by agencies, non- state actors and the wide body of stakeholders and
public consulted throughout the Republic and giving their input by
appearances at public participation forums and submitting written
memoranda.
The work of the Committee culminated in this Policy proposal –
National Policy on Alternative Dispute Resolution which serves as a
unified framework for implementation for ADR in Kenya.
The policy is anchored in the Constitution of Kenya, 2010 (CoK),
International and Regional Human Rights instruments; Sustainable
Development Goal (SDG) 16.3 on the rule of law and access to justice;
the political pillar of Kenya Vision 2030; and the Judiciary’s
‘Sustaining Judiciary Transformation Framework’.
The rationale for this policy consists of the following facts:
(a) Article 48 of the CoK enshrines the right of access to justice for
all Kenyans. The potential to realize this objective through use of
ADR cannot be overemphasized given research shows that 90-
96% of Kenyans access justice through ADR mechanisms.
(b) There is a nexus between dispute settlement, and attractiveness
of an economy for Foreign Investment. The enforcement of
contracts index in the World Bank Country ranking on “Ease of
Doing Business” measures a Country’s attractiveness in settling
of disputes. Kenya’s ranking on the World Bank ‘Ease of
Business Index’ 2017-2019 rose to position three in Sub-Saharan
Africa attributable to amongst other factors improvement in
resolution of disputes through the Court Annexed Mediation
program of the Judiciary.
(c) ADR has the potential to divert focus from litigation and thereby
complement and de-clog the court system.
vii
(d) Through its reconciliatory and mostly non-adversarial approach,
ADR is a catalyst to peace and cohesion in the Country.
(e) ADR is a self-financing apparatus of dispute resolution where
neutral third parties are paid by users of the service. From a cost-
benefit perspective, supporting ADR development is beneficial
to the Government of Kenya as it reduces the burden on the
exchequer.
(f) Inadequate access to justice is negatively correlated to
development.
(g) High transactional costs of litigation disempower and
impoverish the indigent who cannot afford the means for redress.
The purpose of this policy therefore is to actualize the ideals of Articles
1, 10, 48, 67(2)(f), 113, 159(2) and 189(4) through a robust framework
for strengthening, guiding and supporting the coordinated growth of
ADR practice and uptake in Kenya. In so doing, it gives the Kenyan
public the opportunity to resolve disputes through means fashioned to
respond to the real and practical world in which they live and socialize.
It aims to achieve this by proposing a balanced and necessary co-
existence of ADR and the court system, while at the same time
maintaining the autonomy of ADR as a distinct dispute resolution
system.
The policy presents the current status of the ADR system in Kenya, and
in discerning the problem identifies challenges, needs and gaps including:
lack of uniform understanding of key ADR terms and concepts;
inadequate institutional, legal and policy infrastructure; inadequate
governance and regulatory mechanisms; weak intra-sector co-ordination
and linkage with the court system; inadequate availability, accessibility
and demand of ADR services; inadequate capacity within ADR practice
areas; inadequate resources; lack of harmonized standards; and weak
sectoral governance andoversight among other factors.
This Sessional Paper proposes several Government of Kenya
commitments towards addressing these challenges and gaps, towards
development of ADR including adapting an inclusive approach to the
definition and scope of ADR. The policy provisions include the following
interventions:
viii
(a) Situating the oversight mandate for the sector in a national
umbrella agency.
(b) Establishing Practice Area Committees (PACs) to champion
growth and governance of respective areas of practice.
(c) Promoting self-regulation and governance of the sector.
(d) Enactment of an omnibus Dispute Resolution Act or in the
alternative autonomous practice-based legislation which shall be
the framework legislation for the ADR sector.
(e) Encouraging the establishment of an ADR Centre at the Judiciary
as the focal point for linkage and co-ordination of the Judiciary
with the ADR sector, and promotion of ADR in the Judiciary.
(f) Encouraging the establishment of a special ADR settlement
agreements’ registry and depository at the judiciary for the
registration and depositing of ADR awards and settlements.
(g) Proposing strategies and modalities for the promotion of
availability, accessibility, and uptake of ADR in the Country
including compulsory subjection of disputes to ADR, and
compulsory pre-court ADR information sessions.
(h) Inculcating ADR as a way of life through embedding,
integrating, and mainstreaming it in all spheres of life such as
through school curricula and agents of social change.
(i) Establishing regional ADR Centres at the locational level, hosted
by administration unit offices in a collaborative initiative under
the Ministry responsible for Interior and Co-ordination of
National Government.
(j) Establishing programmes for capacity development; quality
control; research and knowledge management and leveraging of
Information Communication Technology (ICT) for ADR
development.
(k) Developing a National Action Plan for the implementation of the
policy, a financing strategy for it, and a monitoring and
evaluation framework for progress monitoring.
This policy document is divided into five parts:
Part 1: Presents the background, and status of ADR in the Republic of
Kenya which form the policy context.
ix
Part 2: Presents the policy problem, that is, the challenges, gaps and
needsin the ADR sector.
Part 3: Articulates the policy strategic framework, stipulating the
rationale, vision, mission, objectives, risks, and assumptions of the
policy.
Part 4: Presents Government of Kenya commitments presented in
policystatements mapped on identified problem areas.
Part 5: Presents the policy implementation arrangements.
x
THE POLICY DEVELOPMENT PROCESS

This policy has been developed through a process initiated in 2018 with
the commissioning of a Baseline Survey1 on ADR in Kenya as a
background document for the policy formulation process. This process
collected and collated data, material and literature used to conduct a
thorough situational analysis of the state of ADR in Kenya.
The findings and observations made in the Baseline Survey informed
the National Alternative Dispute Resolution Policy Memorandum2
drawn up in April, 2019. The memorandum spelt out the parameters for
the proposed policy as well as the formulation process. A Policy
Formulation Consultation Paper3 was developed that would form the
key resource for a participatory policy formulation Workshop held in
Naivasha in July, 2019. This Workshop drew participants from a wide
representation of the ADR sector stakeholders nationwide. The core
product of the Workshop deliberations was a Draft Zero policy
document.
The Zero Draft Policy was subjected to further consultations with
discussions by over 600 stakeholders in eight representative and
participatory forums held in Western, Nyanza, Rift Valley, Central,
Eastern, North Eastern, Coast and Nairobi regions4. The result of those
consultations was refined Draft Policy which was thereafter subjected to
a National Validation Forum5 with wide representation of stakeholders.
The Draft Policy was further improved with the comments from the
Validation Forum to produce the Green Paper or validated version of the
proposed ADR policy6.
The Green Paper was submitted to the then Hon’ Attorney-General who
appointed the National Steering Committee for Formulation of the ADR
1
See ADR Baseline Assessment Situation Analysis Report available at
NCIA. https://www.ncia.or.ke/arbitration-‐-‐-‐downloads/
2 See National Alternative Dispute Resolution Policy Memorandum available at
https://www.ncia.or.ke/arbitration-‐-‐-‐downloads/
3 See Policy Formulation Consultation Paper available at
https://www.ncia.or.ke/arbitration-‐-‐-‐downloads/
4 See stakeholder engagement report available
at https://www.ncia.or.ke/arbitration-‐-‐-‐
downloads/
5 See National Validation Forum Report available
at https://www.ncia.or.ke/arbitration-‐-‐-‐
downloads/
6 Available at https://www.ncia.or.ke/wp-‐-‐-‐content/uploads/2019/08/ZERO-‐-‐-‐
DRAFT-‐-‐-‐NATIONAL-‐-‐-‐ADR-‐-‐-‐POLICY_P.pdf
xi
policy (the Steering Committee). The mandate of this Steering
Committee is set out in Clause 3 of the constitutive notice published in
the Kenya Gazette7. The Steering Committee conducted comparative
research, and targeted consultation with lead stakeholders and experts in
ADR and proposed reforms to the legal and institutional framework as
well appropriate amendments to the legal instruments with a view to
harmonize ADR Practice in Kenya. This exercise resulted in the proposal
for a National Alternative Dispute Resolution Policy.
The proposal for a National Alternative Dispute Resolution Policy was
tabled and approved by the Cabinet on 21st March 2023. The Sessional
Paper No. 4 of 2024 on the National Alternative Dispute Resolution
Policy consolidates the Government of Kenya Policy on Alternative
Dispute Resolution.
7 Gazette Notice No 678 dated 27th January 2020.
xii
1. POLICY CONTEXT
1.1 Background
1.1.1 ADR is a major apparatus for access to justice
ADR is commonly defined as any process or procedure for resolving a
dispute other than a judicial determination by a judge/magistrate in a
statutory court. To the extent that ADR results in a resolution or
settlementof disputes, it is considered an apparatus for access to justice.
Access to justice is a fundamental right that generally guarantees every
person access to an independent justice apparatus and an impartial
process when that individual’s liberty, property or other interests are at
stake. It entails the availability of accessible, affordable, timely and
effective means of redress and remedies through court or non-court
processes and institutions of justice in compliance with constitutional
and international human rights standards.
From a human rights perspective, it is an enabling right that helps
individuals enforce other rights. From a development perspective it is an
important means to prevent and overcome human poverty as it broadens
and strengthens disadvantaged people’s choices to seek and obtain a
remedy for grievances and increases their agency to procure for
themselves the goods and abilities, they need to live decent lives.
From a governance perspective access to justice is an essential element
of the rule of law and democracy. The rule of law is essential for
democracy and economic growth and is the backbone of human rights,
peace, security, and development. It is the principle in governance that
requires that all persons, institutions, and entities, including the state
itself are accountable to the properly promulgated laws of the Country.
The justice sector is critical to the rule of law because the legitimacy of
any government depends on the fair and impartial administration of laws.
From an economic perspective, access to efficient systems of dispute
resolution facilitates timely enforcement of contracts hence enabling
realization and protection of property rights, and limits interruption to
business processes. The restraint on government from predation on
private property is also essential to economic performance, as is
security, fairness,equality, cohesion, and effective application of the law
which are products of the rule of law.
1
Under the logic of Article 159 (2) (c) of the CoK, the apparatus which
facilitates access to justice consists of both the court system, ADR
mechanisms, and the Alternative Justice Systems (AJS) traditional, informal
and other mechanisms to borrow the definition proffered in the AJS Policy
framework8. Justice in post-independence Kenya has however mostly been
associated with the court systems. Studies have nevertheless established that
only 4-10% of Kenyans access justice through the courts, and 90-96% do so
through alternative dispute resolution mechanisms.910 As such ADR is an
essential pillar in the project of access to justice as it serves a majority of the
population. It is also globally viewed as a commercial necessity that provides
a range of advantages over litigation in resolving both domestic and
international commercial disputes.
The growing acknowledgement of the utility of ADR to the delivery of justice
has increased the uptake and infrastructure of ADR in Kenya especially after
the promulgation of the 2010 Constitution which created a constitutional
legitimacy base for its promotion under Articles 1, 10, 48, 67(2)(f), 113,
159(2) and 189(4)11.
This growth has however been sporadic and unregulated, leading to
fragmentation, duplication, inconsistency of standards and confusion among
service providers over various sector issues such as ADR qualifications,
standards, practices, inconsistency in the use of ADR terms, and inter-
disciplinary competition among other challenges identified in thepolicy.
1.1.2 The normative framework for ADR
The normative framework for ADR has grown significantly over the last ten
years after the promulgation of the CoK, 2010, as evidenced by
8 https://www.judiciary.go.ke/download/alternative-‐-‐-‐justice-‐-‐-‐systems-‐-‐-‐baseline-‐-‐-‐ policy-‐
-‐-‐and-‐-‐-‐policy-‐-‐-‐framework/
9 https://www.judiciary.go.ke/download/justice-‐-‐-‐needs-‐-‐-‐and-‐-‐-‐satisfaction-‐-‐-‐survey-‐-‐-‐in-‐-‐-‐ kenya-‐
-‐-‐2017/
10 Legal Resources Foundation Trust, (2005),‘Balancing the Scales: A Report on Seeking
Access to Justice in Kenya,’ Nairobi; Chopra, T., (2008), ‘Building Informal Justice in
Northern Kenya’ Legal Resources Foundation Trust, Research Paper, Nairobi, 2008; Chopra,
T., (2007), ‘Promoting Women’s Right by Indigenous Means. An Innovative Project in
Kenya,’ Justice for the Poor /The World Bank, Briefing Note, Vol.1.2.

11 http://kenyalaw.org/kl/index.php?id=398
2
provisions in many laws12 that support and promote the use of ADR and that
establish trigger and referral mechanisms in different sectors. Frameworks for
internal rules of procedure for key areas of practice have also significantly
developed such as in mediation and arbitration.
(a) Constitutional provision
Read in context Articles 1 of CoK provides for the sovereignty of the people of
Kenya; Article 10 provides for the National values and principle of
governance and particular reference to-human dignity; equity; social justice;
inclusiveness; equality; human rights; non-discrimination; protection of the
marginalized; good governance; integrity; transparency; accountability; rule
of law; and participation of the people and Article 48 which enshrines the
right of access to justice for all Kenyans.
Of direct relevance to ADR is Article 159(2)(C) which stipulates how judicial
authority is to be exercised by stating: ‘In exercising judicial authority, the
courts and tribunals shall be guided by the following principles: justice shall
be done to all irrespective of status; justice shall not be delayed; alternative
forms of dispute resolution including reconciliation, mediation, arbitration
and traditional dispute resolution mechanisms shall be promoted, subject to
clause (3) which states that ‘ justice shall be administered without undue
regard to procedural technicalities’; and that ‘the purpose and principles of
this Constitution shall be protected and promoted’. Article 159 (3) provides
for the promotion of traditional dispute resolution by providing that:
‘Traditional dispute resolution mechanisms shall not be used in a way that:
contravenes the Bill of Rights; is repugnant to justice and morality or results in
outcomes that are repugnant to justice or morality; or is inconsistent with this
Constitution or any written law.’
Several other provisions including Article 67(2)(f) which mandates the
National Land Commission to use TDRM, promote the use of ADR. Through
these provisions, the Constitution legitimizes, and opens wide thescope for the
use of ADR in dispute resolution including traditional dispute resolution
mechanisms.
12 Available at the Kenya Law Reports Website at http://kenyalaw.org:8181/exist/kenyalex/index.xql
3
Article 113 provides for a mediation committee consisting of equal numbers
of members of each house to attempt to develop a version of a Bill that both
Houses will pass.
Article 189(4) provides that national legislation shall provide procedures for
settling inter-governmental disputes by alternative dispute resolution
mechanisms, including negotiation, mediation and arbitration.
Article 252(1)(b) provides that each Constitutional Commission and
Independent Offices has the powers necessary for conciliation, mediation and
negotiation.
(b) International instruments
Access to justice is a right recognized under the major international and
regional human rights instruments including: The Charter of the United
Nations, the Universal Declaration of Human Rights (UDHR), the
International Covenant on Economic, Social and Cultural Rights (CESCR), the
International Covenant on Civil and Political Rights (ICCPR), the United
Nations Convention on the Rights of the Child (UNCRC) and the African
Charter on the Rights and Welfare of the Child (ACRWC).
The ICCPR for instance Article 2 (3) requires that each State Party to the
Covenant undertakes: ‘To ensure that any person whose rights or freedoms as
herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an
official capacity’; ‘To ensure that any person claiming such a remedy shall
have his right thereto determined by competent judicial, administrative or
legislative authorities, or by any other competent authority provided for by
the legal system of the State, and to develop the possibilities of judicial
remedy’; and ‘To ensure that the competent authorities shall enforce such
remedies when granted’.
There has further been increasing normative development on ADR at the
international level, especially around arbitration resulting in many
international and regional instruments. These are relevant to Kenya as it has
ratified some of them, and they anchor the practice of international arbitration
in the Country. For instance, Kenya acceded to the New York Convention on
Enforcement of Foreign Arbitral Awards (New York
4
Convention)13 on February 10, 1989. There have also been significant
developments in bilateral treaties and soft law developments in ADR at the
international level. Kenya has also signed the East African Community Treaty
which provides for arbitration as one of the available means of settling
disputes (Article 32)14. Furthermore, in its enactment of the Arbitration Act,
1995 Kenya adopted verbatim the United Nations Commission on Trade Law
(UNCITRAL) Model Law on Arbitration15.
In the area of mediation, the United Nations Convention on International
Settlement Agreements Resulting from Mediation (Singapore Convention)16
came into force on 20th December, 2018. This Convention focuses on
increasing the enforceability of settlement agreements that arise out of
mediation. It serves as an important step towards encouraging cross-border
mediation by providing parties with the certainty of a framework for
enforcement, and lending legitimacy to the process.
This instrument is pivotal for the development of international mediation. For
Kenya, having already set the pace in the development of legal and
institutional infrastructure for international ADR by the establishment of the
NCIA, the Convention should serve as an indication of the next frontier for the
Country in this endeavour. It is therefore imperative that the Country considers
ratification and develops the requisite infrastructure for international mediation
in order to keep Kenya in the leadership of international ADR on the
Continent.
(c) National legislation
The Civil Procedure Act (CPA) and Rules, Chapter 21 contain provisions with
some of the greatest potential for triggering ADR in the Country. They provide
an opportunity for parties to a matter before the court to
13 Available at
https://www.uncitral.org/pdf/english/texts/arbitration/NY-‐-‐-‐ conv/New-‐
-‐-‐York-‐-‐-‐Convention-‐-‐-‐E.pdf
14 Available at https://www.eacj.org//wp-‐-‐-‐content/uploads/2012/08/EACJ-‐-‐-‐
Treaty.pdf
15 Available at
https://uncitral.un.org/en/texts/arbitration/contractualtexts/arbitrat
ion 16 Available at
https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_
agreements
5
utilize arbitration (section 59); mediation (section 59A, 59B & 59D)17; and
any other method of alternative dispute resolution where the parties agree, or
the court considers the case suitable for such referral. It is under these
provisions that the Court Annexed Mediation, and the Mediation
Accreditation Committee is established. Furthermore, Order 46 Rule 20 of the
Civil Procedure Rules provides that the Court may utilize at its discretion any
form of alternative dispute resolution.
The Arbitration Act, of 1995 and the Arbitration Rules of 1997 form the
principal legal framework governing Arbitration in Kenya. The Nairobi
Centre for International Arbitration Act No. 26 of 2013 establishes the
Nairobi Centre for International Arbitration (NCIA) as a Centre for the
promotion of international commercial arbitration and other alternative forms
of dispute resolution.
Other important laws that promote the use of ADR include: The
Intergovernmental Relations Act, 2012; the Land Act, 2012; The Employment
and Labour Relations Act, 2011; Environmental and Land Court Act, 2011;
Small Claims Act, No.2 of 2016; and The Commission on the Administration
of Justice Act, 2011 among others.
1.1.3 The National Development Context
Access to justice is considered a core pillar in development at all levels and is
provided under all development blueprints. The (SDGs) that constitute
Agenda 2030 are the global development policy blueprint. Agenda 2030 is a
commitment by the global community to eradicate poverty and achieve
sustainable development by 2030, world-wide, ensuring that no one is left
behind. Kenya strategically maps each of the 17 SDGs with Kenya Vision
2030 Medium Term Plans (MTPs) objectives to ensure the global
development framework and its implementation are directly linked towards
achieving both Vision 2030 and SDGs. SDG 16.3 commits the international
community to promote the rule of law at the national and international levels
and to ensure equal access to justice for all by 2030.
Kenya Vision 2030 primarily aims to transform Kenya into a globally
competitive and prosperous nation with a high quality of life. Under its
political pillar, the Vision pinpoints specific strategies that must be
17 Available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/CivilProcedureAct.PDF
6
employed to ensure enactment and implementation of a policy, legal and
institutional framework vital for promoting and sustaining fair, affordable and
equitable access to justice, including increasing service availability and
access (or reducing barriers) to justice. The MTP III outlines the main
policies, legal and institutional reforms as well as programmes and projects
that the Government plans to implement during the period 2018 – 2022.
The Judiciary’s current strategy document, the ‘Sustaining Judicial
Transformation’ (SJT) has as a core goal ‘’a people-focused delivery of
justice’, with the specific objective to among others ‘increase access to and
expeditious delivery of justice’. One key strategy towards this goal is
‘promoting and facilitating Alternative Dispute Resolution (ADR)’.
1.2 ADR Sector Overview
ADR and AJS predate conventional court adjudication of disputes in Kenya. In
the pre-colonial era societies had established systems of resolution of
communal conflict. In colonial Kenya, these systems co-existed with the
judicial system albeit viewed as inferior forums and often suppressed. In post-
colonial Kenya, the emergence of multiple urban nationalities and
contemporary commerce was accompanied with adaptation of conventional
forms of ADR. These latter forms of ADR have continued to define a space in
the larger scheme of resolution of disputes. There is now a robustly
developing sector catapulted by the promulgation of the 2010 Constitution.
1.2.1 Types of ADR mechanisms
The different mechanisms of ADR in Kenya are differentiated by the role of
the third party or the ‘neutral’ in the ADR process. Based on this element, ADR
practice can be classified along three primary types of mechanisms:
adjudication-based process; recommendation-based process and facilitation-
based processes. In some instances, there may be a combination of these
processes.
In adjudication-based processes, the role of the neutral is to decide for the
parties after some form of hearing or decision-making process. That decision
is binding on the parties either by consent or by force of law. In these
processes preserving the relationship of the parties is not an important
consideration of the parties. Mechanisms and processes falling in this
classification in Kenya include arbitration, expert evaluation, adjudication,and
tribunals.
7
In recommendation-based processes, the neutral makes suggestions to the

parties on how the dispute should be resolved. Although the parties are free to
reject these recommendations, the neutral party’s position and influence can
be highly persuasive. Examples of mechanisms and processes falling in this
classification in Kenya are conciliation and early neutral evaluation. In these
processes preserving the relationship of the parties is an important
consideration of the parties.
In facilitation-based processes, the neutral party has no formal role in the
substantive decision making on how to resolve the dispute as that
responsibility rests with the parties themselves. The neutral’s role is to set up
the process, merely facilitating the parties’ communication towards decision
making. Mechanisms and processes falling within this classification that are
practiced in Kenya include: mediation; stakeholder facilitation; dispute
resolution boards, and ombudsman processes, although the latter two
sometimes combine facilitation and adjudication-based processes. In these
processes, preserving the relationship of the parties is an important
consideration of the parties.
Hybrid mechanisms is a growing field in ADR which allows combinations of
different, tailor-made processes that are better suited to the circumstances of
each dispute and the interests of the parties involved. In hybrid mechanisms,
providers utilize creative adaptations and/or combinations of adjudication,
recommendation, and facilitation processes, depending on the nature of the
dispute and circumstances of the matter.
In Kenya, AJS utilizes hybrid ADR processes. Some major ADR providers
who also utilize hybrid mechanisms in Kenya are the local administration and
faith-based providers. Other mechanisms applied in Kenya include convening,
neutral fact finding, private judging, and peer review panels, among others.
The mechanisms that are most widely utilized in the Country are: negotiation,
conciliation, mediation, and arbitration. This policy is an opportunity to
harness the existing mechanisms and develop those that are in the embryonic
stage and integrate them to provide a milieu of choice to parties in dispute.
1.2.2 The use of ADR practice in different sectors
Triggers for the practice of ADR have been established mostly by legislation
in various key sectors in the Country, and ADR is already being practiced in
most of those sectors. These sectors include electoral; commercial; family;
environmental; land; taxation; energy; construction; employment and labour;
and in criminal justice, among others.
8
(a) ADR in Electoral Justice
The Second Schedule of the Elections Act provides for the establishment of
various mechanisms for ADR including the Electoral Code of Conduct
Enforcement Committee (ECCEC); and the Constituency Peace Committees
(CPCs). In addition, section 23 of the Schedule provides that all parties must
outline the internal political party dispute resolution mechanisms. Some of
these mechanisms such as the ECCEC are already operational and were
instrumental in dispute resolution in the 2017 elections.
(b) ADR in family law
Section 68 of the Marriage Act provides for mediation and conciliation of
disputes in customary marriages. Under the Children’s Act, 2001, the office of
the Director of Children’s Services is among other things empowered to
mediate family disputes involving children, and their parents, guardians or
other persons who have parental responsibility in respect of the children, and
to promote family reconciliation. Court Annexed Mediation, the National
Legal Aid Services (NLAS), and Civil Society Organizations (CSOs) such as
FIDA(K), CRADLE, and AJS also apply mediation and conciliation in family
matters.
(c) ADR in the Commercial Sector
Arbitration under the Arbitration Act, 1995 is the foremost mechanism of
ADR that is utilized in the commercial sector. Mediation is also fast becoming
widely used in the sector. Legal and institutional infrastructure for commercial
arbitration has grown significantly in recent years as evidenced by the
establishment of the NCIA. Mediation infrastructure supporting commercial
mediation includes the Court Annexed Mediation and NCIA which are
actively promoting and utilizing it. ADR has been embraced in the
commercial sector as it facilitates faster and confidential resolution of disputes
hence limiting interruption to business processes.
(d) Consumer protection
The Consumer Protection Act, 2012 provides that after a dispute over which a
consumer may commence an action in the High Court arises, the consumer,
the supplier and any other person involved in the dispute may agree to resolve
the dispute using any procedure that is available in law. The Act also
established the Kenya Consumers Protection Advisory Committee whose
functions include among other things: creating or facilitating the
establishment of conflict resolution mechanisms on consumer issues, and
investigation of any complaints received regarding consumer issues, among
9
other things.
(e) Taxation
The Tax Appeals Tribunal Act, 2013 was enacted to make provision for the
establishment of a tribunal for: the management and administration of tax
appeals; and connected purposes. Notably, section 28 of the Act provides that
parties may, at any stage during proceedings, apply to the tribunal to be
allowed to settle the matter out of the tribunal, and the tribunal should grant
the request under such conditions as it may impose. Also, under the Tax
Procedures Act, tax disputes can be resolved through ADR except if: the
settlement would be contrary to the Constitution, the revenue laws or any
other enabling laws; the matter borders on technical interpretation of law; it is
in the public interest to have judicial clarification of the issue; there are
undisputed judgments and rulings; or a party is unwilling to engage in ADR
process.
(f) ADR in Environmental disputes
Traditional conflict resolution mechanisms have been employed for a long
time in resolving environmental conflicts where the council of elders, peace
committees, land adjudication committees and local environmental
committees play a pivotal role in managing conflicts. Mediation is the most
utilized method. The CoK provides for the encouragement of communities to
settle land disputes through recognized local community initiatives consistent
with the CoK, and communities commonly do so. Further, section 20 of the
Environment and Land Court Act, 2011 allows the court to adopt and
implement on its own motion, with the agreement of or at the request of the
parties any other appropriate means of alternative dispute resolution including
conciliation, mediation, and traditional conflict resolution mechanisms in
accordance with Article 159(2)(c) of the Constitution. Where alternative
dispute resolution mechanism is a condition precedent to any proceedings
before the Court, the Court is mandated to stay proceedings until such
condition is fulfilled.
(g) Land disputes
One of the functions of the National Land Commission established under
Article 67(2)(f) of the CoK is to encourage the application of traditional
conflict resolution mechanisms in land conflicts. section 4 of the Land Act
,2012 lays down the guiding values and principles of land management and
administration which include: the encouragement of communities to settle
land disputes through recognized local community initiatives; and alternative
10
dispute resolution mechanisms in land dispute handling and management. Along
the same lines, section 39(1) of the Community Land Act, 2016 provides that a
registered community may use alternative methods of dispute resolution. Most of
these communities utilize ADR to resolve their land-based disputes.
(h) ADR in Civil Justice
The bulk of ADR services are provided within the civil justice area, and mostly
by private ‘free standing’ or institutional ADR service providers with and without
referral from the court system. The Civil Procedure Act and Rules creates the
opportunity for court referred ADR for matters already before the court. The court
system also has created legislative imperatives for court promoted ADR. Section
26 (1) of the High Court (Organization and Administration) Act, 2015 for
instance provides that ‘in civil proceedings before the Court, the Court may
promote reconciliation amongst the parties thereto and shall encourage and
permit the amicable settlement of any dispute’.
Section 26 (3) of the Act further provides that: ‘nothing in this Act may be
construed as precluding the Court from adopting and implementing, on its own
motion, with the agreement of or at the request of the parties, any otherappropriate
means of alternative dispute resolution including conciliation, mediation and
traditional dispute resolution mechanisms in accordance with Article 159(2)(c) of
the Constitution’. Further, section 26 (4) provides that: ‘Where an alternative
dispute resolution mechanism is a condition precedent to any proceedings before
the Court, the Court shall by order, stay the proceedings until the condition is
fulfilled’.
(i) ADR in Criminal Justice
Court referred ADR is also enabled by section 176 of the Criminal Procedure Code which
provides for the promotion of reconciliation. Reconciliation is promoted in proceedings
for common assault, any other offence of a personal or private nature not amounting to a
felony, and not aggravated in degree, on terms of payment of compensation or other terms
approved by the court. Courts have however taken bold steps to go beyondthe
jurisdictional scope of section 176 and have allowed ADR through TDRM even in
felonious matters as witnessed in the murder cases of Republic v Mohamed Abdow
Mohamed [2013] eKLR,18 and Republic v Ishad Abdi Abdullahi [2016] eKLR19. Recon
ciliation efforts must be initiated before the Court makes its final decision or discharges its
duty in the matter.
18
Available at http://kenyalaw.org/caselaw/cases/view/88947/
19 Available at http://kenyalaw.org/caselaw/cases/view/128857

11
The use of plea-bargaining has also been promoted by courts and Office of the
Director of Public Prosecutions (ODPP) as provided for under section 137A of
the Criminal Procedure Code and further facilitated by the Criminal Procedure
(Plea Bargaining) Rules, 2018. A plea bargain is an agreement between a
defendant and a prosecutor, in which the defendant agrees to plead guilty or
‘’no contest’’ (nolo contendere) in exchange for an agreement by the
prosecutor to drop one or more charges, reduce a charge to a less serious
offense or recommend to the judge a specific sentence acceptable to the
defence.
A ‘no contest’ plea is a plea used in criminal proceedings as an alternative to a
guilty or not guilty plea, whereby the defendant neither disputes nor admits to
doing the crime. It literally means ‘I do not wish to contend. The courts have
also been using reparation and reconciliation, and increasingly diversion in
juvenile matters amongst other forms of ADR, with the only challenge being
that parties sometimes make the request too late in the process. Magistrates
also utilize the insights provided by social context, and pre-bail reports from
probation and children’s officers’ reports to screen the cases that can be settled
by ADR and to encourage parties to settle certain matters out of court.
(j) ADR in Labour and Employment
The Employment and Labour Relations Court Act, 2011 contains provisions
allowing the Court to stay proceedings and refer the matter to conciliation,
mediation, or arbitration. It also provides that the court may adopt alternative
dispute resolution and traditional conflict resolution mechanisms as envisaged
in Article 159 of the Constitution.
(k) ADR in the Energy Sectors
The Energy (Energy Management) Regulations, 2012 provide that where a
dispute arises between an energy facility owner or occupier and the energy
auditor, the dispute shall be referred to the Commission for determination. A
person aggrieved by a decision of the Commission may appeal to the Energy
Tribunal. The Energy (Complaints and Dispute Resolution) Regulations, 2012
provide that where a dispute has been referred to the Commission under the
Rules, the Commission is required to appoint a mediator who shall assist the
parties to reach a settlement within thirty days from the date of such
appointment. Under Regulation 16, the Commission may refer the dispute filed
with it to experts or to a Dispute Resolution Panel, appointed from among
persons in the database.
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(l) ADR in Mining Sector
The Mining Act 2016 under Section 154 provides that ‘a mineral agreement
shall include terms and conditions relating to, inter alia: the procedure for
settlement of disputes; and resolution of disputes through an international
arbitration or a sole expert. It also provides that ‘any dispute arising as a
result of a mineral right issued under this Act, may be determined in any of the
following manners: by the Cabinet Secretary in the manner prescribed in this
Act; through a mediation or arbitration process as may be agreed upon by the
disputing parties or as may be stated in an agreement; or through a court of
competent jurisdiction’.
(m) ADR in Intergovernmental Disputes
Article 189 (4) provides that ‘national legislation shall provide procedures for
settling inter-governmental disputes by alternative dispute resolution
mechanisms including negotiation, mediation and arbitration.’ Accordingly,
the Intergovernmental Relations Act, 2012 was enacted to, among other
things: ‘…establish mechanisms for the resolution of intergovernmental
disputes.’. Section 30(2) of the Act requires national and county governments
to take all reasonable measures to: resolve disputes amicably; and apply and
exhaust the mechanisms for alternative dispute resolution provided under the
Act or any other legislation before resorting to judicial proceedings.
According to section 32(1) of the Act any agreement between the national
government and a county government or amongst county governments should:
‘…include a dispute resolution mechanism that is appropriate to the nature of
the agreement; and provide for an alternative dispute resolution mechanism
with judicial proceedings as a last resort’. Intergovernmental Relations
(Alternative Dispute Resolution) Regulations, 2018 were developed to
operationalize these provisions.
(n) Constitutional Commissions
The commissions and independent offices established under Chapter 15 of the
Constitution have been clothed with the necessary powers for ADR under
Article 252 (1) (b) of the Constitution which provides that: ‘Each commission,
and each holder of an independent office has the powers necessary for
conciliation, mediation and negotiation’. Most of these commissions such as
the Kenya National Commission on Human Rights (KNCHR) and
Commission on Administrative Justice (CAJ) have established and
operationalized their complaints and dispute handling systems towards
execution of this mandate.
13
(o) ADR in administrative justice
ADR in administrative justice is most visible in the functions of the CAJ
under the Commission for Administrative Justice Act (2011), which include,
among others, to: ‘..work with different public institutions to promote
alternative dispute resolution methods in the resolution of complaints relating
to public administration’. CAJ has, in collaboration with state and semi-
autonomous state agencies, established complaint mechanisms within state
agencies to deal with administrative complaints. The methods and procedures
used in these mechanisms and the ombudsman function of CAJ are ADR
methods such as mediation and conciliation.
(p) ADR in National Peace Building Initiatives
The National Steering Committee on Peace Building and Conflict
Management was established in 2001 by the Government of Kenya as part of
the framework for addressing threats and challenges to national unity, and the
need to among other things incorporate traditional justice resolution
mechanisms into the infrastructure of conflict mitigation. Furthermore, the
National Policy on Peacebuilding and Conflict Management, 2012 was
formulated to among other things: establish a Mediation Support Unit to
provide and coordinate mediation and preventive diplomacy capacity to
Kenya and its neighbouring states, and it recognizes the critical role of
traditional conflict resolution mechanisms such as community declarationsand
social contracts in line with the Constitution.
Furthermore, the National Cohesion and Integration Act, 2008 established the
National Cohesion and Integration Commission (NCIC) whose object and
purpose is to facilitate and promote equality of opportunity, good relations,
harmony and peaceful co-existence between people of different ethnic and
racial communities of Kenya, through among other ways: promoting
arbitration, conciliation, mediation and similar forms of dispute resolution
mechanisms in order to secure and enhance ethnic and racial harmony and
peace.
1.2.3 Institutional framework in ADR
Institutional typology of ADR in Kenya is mainly public or private. Public

institutions are those created by law such as the Nairobi Centre for
International Arbitration; the Judiciary which houses the Court Annexed
Mediation; Constitutional Commissions; and other institutional forms that are
vested with ADR mandates by law.
Private ADR institutions include free standing for-profit and non-profit
14
organizations, religious organizations, and community-based entities such as
councils of elders. The levels of institutional development vary depending on
the area of practice.
(a) Mediation
In the public sector, the Judiciary through its Court Annexed Mediation
program, provides an institutional framework for court connected mediation.
the NCIA and the National Legal Aid Service (NLAS) are some of the state
institutions offering mediation services. Many other state, or semi-
autonomous institutions have been given mandates to utilize mediation as
illustrated in the sections above on the analysis of the use of ADR in different
sectors; electoral mechanisms; land and environmental agencies and national
peace infrastructure among others. In the private and non-state sectors
institutional actors include: The Strathmore University Dispute Resolution
Centre; and FIDA(K), Tatua Centre, Institute of Chartered Mediators and
Conciliators; Dispute Resolution Centre, Wasilianahub Mediators Africa and
Kituo cha Sheria, among others.
1. (b) Arbitration
In the public sector, institutional actors in arbitration in Kenya are mainly:
The Nairobi Centre for International Arbitration (NCIA) and Kenya Sports
Disputes Tribunal whose mandate emanates from the Sports Act, 2013. In the
private sector and other non-state sectors actors include the Chartered Institute
of Arbitrators (Kenya) Branch; Dispute Resolution Centre (DRC); and The
Strathmore Dispute Resolution Centre (SDRC).
(c) Alternative Justice Systems
In most rural communities, there exist various institutions established through
traditional customs to maintain order, peace, and community cohesion. These
institutions include community councils of elders, clan elders, age mate group
panels, matriarchs, and patriarchs of extended households. The most
established and widely used of these are councils of elders. A core
responsibility of these institutions is dispute resolution.
(d) Civil Society Organizations
CSOs are champions of ADR in their access to justice work, through their
community outreach and legal aid programs. They engage in ADR
development through research and advocacy, and contribution to the
development of the law and policy. Some relevant and active CSOs in this
regard include Centre for Rights Education and Awareness (CREAW); FIDA
15
Kenya, Kenya Human Rights Commission, Muslims for Human Rights, Kituo
Cha Sheria, International Commission of Jurists ICJ(K) amongst others.
(e) Faith-based organizations
Faith-based organizations are major actors in dispute resolution for the
members of their congregations. The position of trust and eminence granted
priests, pastors, Imams, Sheikhs, pujaris, and other religious leaders by the
communities often finds them invited to facilitate the resolution of family and
other disputes or conflicts. For Islam for instance, ADR is practiced under the
maslah system, which is a principle of shariah law, and generally denotes
prohibition or permission of a thing based on whether it serves the public
interest of the Muslim community (ummah). The determination of disputes
under this system is based to a great extent on this principle.
In some communities applying maslah such as the Somali in Northern Kenya
however, the principles and institutions of religious law may be combined
with cultural norms in a bid to adapt to the realities of the parties and
communities and to arrive at a realistic settlement. National level institutions
representing faith-based organizations include the National Council of
Churches of Kenya (NCCK) and the Council of Imams and Preachers of
Kenya (CIPK), and Hindu Council of Kenya, among others.
(f) Local Administration
The local administration through offices such as chiefs and DCs also provides
a widely used avenue for dispute resolution for communities. Chiefs conduct
hearings involving minor disputes and conflicts. This is done in collaboration
with community leaders and elders to promote peace and harmony in the
community.
There is therefore a significantly established and growing network of laws and
institutions promoting and providing ADR services at different levels and
sectors in Kenya.
16
SESSIONAL PAPER NO.4 OF 2024 ON THE NATIONAL
2. THE POLICY PROBLEM

Despite the noted legislative and institutional growth in the ADR sector,
certain challenges, gaps and needs present dysfunctional conditions that
undermine the full realization of the potential of ADR in the Country and
inhibit its further development.
2.1 Conceptual and Definitional challenges and unclear scope of ADR
(a) Conceptual and definitional problems
Conceptual issues in ADR have to do with the definitions of key ADR terms
such as ADR itself, its component terms of ‘Alternative’; ‘Dispute’ and
‘Resolution’ and key terminologies used in ADR. There is no resource in the
sector such as a ‘glossary of terms’ to guide practitioners, users and regulators
on common terminologies used in ADR for uniformity of understanding and
usage. There is also inadequate clarity as to what conceptions of justice are
applied in ADR-whether it is the legal conception based on clearly stipulated
rules, principles and individual rights, or other forms such as social and
distributive justice which are based on distribution of wealth, opportunity and
communal interests.
(b) Unclear Scope of ADR
The inadequate articulation of the scope of ADR is also an important
conceptual gap, which undermines a holistic appreciation of the ambit of
ADR in the Country. ADR is often narrowly viewed as consisting only of
certain specific commonly known areas of practice such as arbitration and
mediation. It is also wrongly assumed to be a service mostly offered in civil
matters, and mostly by lawyers. This situation undermines the understanding
of ADR for users, potential users, policy makers, practitioners and hence
limiting its utility towards the goal of access to justice.
(c) Jurisdictional Challenges
Lack of clarity on the jurisdictional limits of ADR also undermines the
development of ADR. For instance, there is a lack of consensus on the extent
to which criminal justice can be dispensed through ADR. The underlying
concern in criminal justice is primarily with the public good of security, order,
and lawfulness and not restoration or reconciliation which are key concerns in
most types of ADR in criminal matters. The challenge here is how to balance
the state’s aim of protecting the public good of security and order with the
ADR’s focus on the interests of the victim and the accused on the one hand,
and the social goods of communal cohesion and peace on the other hand. It is
also unclear whether, even if criminal justice were to be dispensed through
ADR, mechanisms such as TDRMs are appropriate for those purposes.
Further, it is not clear in what matters and circumstances ADR is not
appropriate or legally acceptable.
17
(d) Question of Justiciability
Justiciability is a legal concept that concerns the limits upon legal issues over
which a court can exercise its judicial authority. Elements of this include the
concept of ‘standing’ which is used to determine if the party bringing the suit
is the appropriate one to do so, and whether the court before which the matter is
brought possesses the ability to provide adequate resolution of the dispute.
Other elements have to do with the substance of the matter, such as for
instance whether parties are just seeking an advisory opinion. There must also
be an actual controversy between the parties, that is the parties should not be
seeking the same result, but different outcomes.
Furthermore, the issue or question before the court must neither be unripe nor
moot. An unripe question is one for which there is not yet at least a threatened
injury to the plaintiff or where the available judicial alternatives have not all
been exhausted. A moot question is one for which the potential for an injury
has ceased to exist, or where the injury has been removed. Non- justiciable
matters may also be matters that are impossible to resolve because of the
unavailability of judicially discoverable and manageable standards for
resolving them or no remedies available for them such as for instance claims
of witchcraft.
There is no clarity as to whether these are matters of concern to ADR forums as
dispute resolution forums.
2.2 Legal gaps and challenges
(a) Inadequate implementation of existing laws
As illustrated in the analysis further above, pursuant to the 2010 Constitution,
many statutes have provided for the application of ADR including TDRM in
dispute resolution in their areas of focus. There has however been inadequate
leveraging of these provisions for entrenching the use of ADR in the
Country. These include: The Intergovernmental Relations Act, 2012; The
Civil Procedure Act and Rules; the Land Act 2012; The Employment and
Labour Relations Court Act, No. 20 of 2011; Environmental and Land Court
Act, 2011; Small Claims Act, No 2 of 2016; and The Commission on the
Administration of Justice Act, 2011 among others.
(b) Lack of sectoral framework legislation
The legislative developments though progressive are still very limited and
fragmented and lack an enforcement mechanism. Different mechanisms and
areas of practice have developed various forms of legislation such as practice
directions, rules of practice and codes of conduct. These are, however,
disparate in form and quality and lack common guiding principles in their
development and application.
Furthermore, there is a lack of a unifying governance and regulation
18
framework in the sector. These realities point to a need for a framework
legislation, which would among other things: provide for coordination; sector
regulation; provide guiding principles for legislative development in practice
areas, and in standards development in training and accreditation of
practitioners; and establishment of an oversight institution for the sector.
(c) Lack of legislative framework for practice areas of mediation and
other key practice areas such as TDRMs and other informal
justice systems
Mediation is the most used and fastest growing ADR mechanism in the
Country. It is also increasingly used in the commercial sector. Its importance
internationally has been underlined by the development of the Singapore
Convention on Mediation which is set to increase its legitimacy even in cross-
border disputes. It is therefore imperative that the practice area of mediation be
supported by legislation much the same as the one in arbitration which would
order and guide the growth of the sector and domesticate the international
mediation norms.
TDRMs and providers such as provincial administration and faith-based
providers are also not supported by any enabling legislation. Legislation
guiding the growth and regulation of these providers of ADR may further
their development, recognition and support, and their ability to coordinate
with other mechanisms.
Inadequate and ad hoc Institutional development in the sector
(a) Inadequate Institutional development
Institutional development in ADR has been ad hoc and unstructured. In both the
public, private and non-state sectors, it is concentrated in arbitration and
mediation and is also city centric. Even though there are some well
entrenched organizations, there are still very few relative to the legal and
justice needs of Kenyans. Most public institutions with ADR mandates have not
developed adequate infrastructure for promoting the practice and those that
have developed them, have not publicized them enough to the public, as for
instance constitutional and other commissions.
(b) TDRMs lack institutional support
TDRMs have inadequate institutional development. They operate through
cultural institutions governed by customary norms. These institutions lack
adequate governance and accountability structures and standards of operation
within set constitutional parameters and have few links and collaboration with
other ADR and formal justice institutions.
(c) Silo approach
Existing ADR institutions operate in silos with little coordination and
collaboration. This occasions duplication, confusion and limits sectoral
19
harmony, and the development of a community of practice in ADR. Harmony
and a community of practice would catalyze order and cohesive growth in the
sector generally and in practice areas.
(d) Inadequate utilization of potential in other institutions
There are institutions with the potential for anchoring, promoting and being
access points for the provision of ADR services within their infrastructure
such as: universities; professional bodies such as: LSK, KAM, KNCCI,
KEPSA, KBA, APSEA; government agencies and private corporations; trade
unions; employer bodies; and Consumer organizations such as: COTU, FKE,
COFEK; and CSOs especially those at the grassroots. The utilization of the
institutional capital that these organizations already have for dispensing ADR
services needs to be encouraged and structured.
(e) Lack of an oversight institution
The ADR sector also lacks an oversight institution, a situation that occasions
fragmented growth, and a lack of common standards, co-ordination and
effective regulation and governance.
2.4 CHALLENGES IN ADR MECHANISMS
2.4.1 Challenges in Arbitration
Challenges in arbitration include escalating costs of the service; increasing
legal procedures which complicates the process; unethical behaviour amongst
some practitioners where they deliberately slow down the process to their
benefit; inefficient linkage of arbitration with court system for adoption and
enforcement leads to long processes in the courts which compromises the
efficiency gains of the arbitration process.
Furthermore, the arbitration practice area does not have a regulatory
framework or standardized training curriculum or code of conduct and
enforcement mechanism. Institutions operate in their own siloed environments
with little coordination, collaboration and without any accountability
structure. There is also inadequate awareness about arbitration in the Country,
and an inadequate number of qualified arbitrators.
2.4.2 Challenges in Mediation
Mediation is the fastest growing ADR practice in the Country, and the most
utilized process even in other mechanisms such as TDRMs, provincial
administration and faith-based mechanisms. Development of the practice has
been marked by the silo approach to institutional development with each of the key
actors developing their own different rules, curricula, and training programs. This
has led to duplication, disparate standards, and a disjointed practice.
The sector also has inadequate numbers of trained and training personnel and
specialist mediation expertise in specialized dispute areas such as family and
20
commercial sectors, among others. This situation in the practice area calls for
framework legislation that would guide the growth of the sector and sets a
framework for standards and capacity development.
2.4.3 Challenges in Negotiation
Negotiation is the most widely used method of dispute resolution in everyday
life and within other mechanisms of ADR. It has the potential of assisting in
resolving disputes before they escalate to unmanageable levels, and to promote
peace and order through resolution of daily human conflictsand disputes.
It is however undermined by various challenges including lack of
enforcement mechanism; being prone to exploitation of some parties by others
due to power and negotiation skills imbalance; being prone to deadlocks; and
the possibility of degenerating into confrontation since there is no third party to
moderate communication.
Many people do not have basic negotiation skills, and this makes it difficult for
them to diffuse and or resolve simple disputes in their lives. There is also no
institution championing development of negotiation in the Country. It is partly
because of poor negotiation capacities that most disputes escalate to un-
negotiable levels.
2.4.4 Challenges in Conciliation
One major challenge in conciliation is that it is little known even though it is
often used in many social disputes. As an area of practice, it also lacks
institutional and legislative support and professional capacity building for its
delivery. It is widely used for instance in family disputes but there is little
professional expertise developed within that sector for conciliation. It is also often
confused with mediation yet there are major distinctions in their practice.
Conciliation is recommendatory while mediation is facilitatory.
2.4.5 Challenges in Adjudication
A major challenge in adjudication is that even though it renders justice
expeditiously, it is commonly practiced in and associated with the construction
sector. This may restrict its use by the public who may perceive it as a preserve of
the construction sector. There is a need for further public awareness on the use of
adjudication in other sectors. The Small Claims Courts Act creates a court-
practiced ADR by bringing adjudication into the formal practice of the courts
albeit maintaining its less stringent proceduralapproach.
Court-practiced adjudication needs to be distinguished from non-court practiced
adjudication in the Act so as not to confuse the public to thinking that adjudication
is purely a court process, administered by lawyers and one that is restricted to a
specific pecuniary jurisdiction. The adjudication practice is challenged by
inadequate training programmes and institutional forms championing its practice
as an ADR mechanism.
21
2.4.6 Challenges with Ombudsman
The mechanism of the ombudsman is under-developed and under-utilized in
the Country. Generally, an organizational ombudsman is a designated neutral
or impartial dispute resolution practitioner whose major function is to provide
independent, impartial, confidential, and informal assistance to managers and
employees, clients and other stakeholders an organization.
The ombudsman, who must be independent and not have any real or perceived
conflict of interests often utilize ADR approach to address matters brought to
them, and usually use mediation, conciliation and adjudication to facilitate
conflict/dispute resolution. They are better known in the public sector where
they receive public complaints on administrative mal-practice and human
rights violations by the state, such as the CAJ.
In developed jurisdictions such as the USA and Canada, in the last two
decades, the ombudsman idea has spread rapidly in the private sector. There are
now several kinds of private-sector ombudsman, the most popular being
corporate ombudsman appointed by business corporations to handle
complaints from their employees and stakeholders such as customers,students,
and patients, among others.
The newest and most rapidly growing type in the private sector is an
ombudsman scheme created by a whole association of business firms, such as
the banking sector, to investigate complaints from customers against member
firms. The potential for this mechanism is significant, and it is grossly
unexploited in both the public and private sectors.
2.4.7 Challenges with Alternative Justice Systems
Key challenges in AJS include lack of: clarity of the scope of their
jurisdiction; uniformity of guiding norms and procedures even amongst elders
within the same community; a framework law governing AJS practice; an
oversight institution to manage governance and set and enforcestandards in the
practice area; a code of conduct for practitioners; sufficient capacity building
for practitioners in order to adhere to the principles of justice, morality and the
constitution; sufficient enforcement mechanisms and guidance as to the
acceptable and constitutional awards and enforcement mechanisms;
inadequate linkages with the formal justice systems and other ADR practice
mechanisms; and a remuneration framework of practitioners which affects the
availability of the service and creates an opportunity for abuse.
Linkage and coordination challenges
The relationship, linkage and interface between the court system and ADR
mechanisms is critical for various reasons including enforcement of ADR
settlements and the fact that the judiciary is a major referral agent for disputes
to ADR. Similarly, ADR is beneficial to the court system as it de-clogs the
courts, hence increasing their efficiency. Furthermore, the two are key
22
apparatus in the arena of dispute resolution. While caution should be taken not
to co-opt ADR within the formal justice systems, there is a need to forge
strategic linkages that are mutually beneficial to both.
Coordination within the ADR sector itself is weak as evidenced in the
disparate development of standards, fragmented institutionalization, and
vacuum in sector governance infrastructure.
Recognition and Enforcement Challenges
Court recognition of arbitral awards turns them into court decrees and
increases their enforceability by making them prima facie
agreements/contracts, admissible as evidence on their face unless successfully
rebutted, or dis-proved. For mechanisms for which adoption is not required by
law, some practices such as: registration; court approval; notarial deeds; co-
signing of agreements by Counsel have been used in some jurisdictions for
recognition.
For mechanisms for which adoption is not required by the law such as
mediation, even though non-compliance with settlement agreements is very
low (since parties will seldom refuse to adhere to agreements which they have
spent time and money arriving at), mechanisms for adoption or registration of
settlement agreements would be important as they would give more
legitimacy to the process when parties know that their settlement will be
registered or recognized and may encourage them to take the process more
seriously.
Mechanisms such as AJS have some enforcement mechanisms, but some of

these are unconstitutional. For those mechanisms that require court adoption
by law such as arbitration, timeliness and confidentiality may be compromised
due to delays in the court process, and its public nature. These delays are
sometimes caused by unnecessary application of civil procedure rules on
arbitration awards and mediation settlements in adoption processes. There is a
need for custom made linkage between courts and ADR mechanisms such as
for instance special registries for these settlements and a system of
anonymity of details to preserve confidentiality.
2.8 Technological gaps
ICT has the potential to disrupt working models within ADR as it does in any
other sector. It is therefore imperative that there is in-tandem development of
ICT capacity in the sector. ADR is already being transformed by technology,
with some forms such as mediation being conducted electronically in the
commercial sector as well as the family dispute resolution sector.
This is done through webcams and video conferencing facilities among other
devices to overcome cross-border or other distance separation. There is
inadequate exploitation of the opportunity presented by this development in
23
Kenya despite the high mobile penetration and Kenya being a leading ICT
user on the continent. Adoption of such technology may reduce the overall
cost of ADR by doing away with travel and venue costs.
2.9 Gaps in sector regulation and governance
Some areas of practice, especially mediation and arbitration, have developed
standards of practice. These are however not uniform in each practice area,
hence creating confusion and challenging quality control. There are no
standards in some areas such as TDRMS, provincial administration and faith-
based provides. There is furthermore no framework of principles guiding
development of standards nationally and no regulatory institutions to manage
disciplinary processes and enforce standards for practitioners and institutions.
2.10 Inadequate and un-uniform public awareness and understanding
of ADR
There is a lack of common and consistent use of ADR terms, and inadequate
understanding of ADR, its mechanisms, their benefits vis a vis the courts,
when the different mechanisms may be appropriate, what standards are to be
expected and where ADR services may be accessed across the Country.This
fundamentally undermines the uptake of ADR services.
24
3. POLICY STRATEGIC FRAMEWORK
3.1 The Rationale for the policy

The logic for the development of this policy is based on the following facts
and realities:
(a) An efficient ADR service in the Country especially serving the
commercial sector is a catalyst of commercial activity, and foreign
investment as evidenced by the significant improvement of Kenya’s
ranking on the World Bank’s ‘Ease of Doing Business Index’ hence
making it a more attractive investment destination as a result of the
establishment of the Court Annexed Mediation by the Judiciary.
(b) Only 4-10% of the population access through the formal system. 90-
96% of Kenyans access justice through ADR mechanisms. The
adversarial approach embedded in the public adjudication processes is
alien to the community-centric culture that evidently regards ADR to
be at the center rather than the periphery of resolving their disputes It
is therefore imperative that these mechanisms are supported and
developed further.
(c) Access to justice is an important right that enables the realization of
other rights, the rule of law, and ultimately development. Realization
of this right for the majority of Kenyans is a catalyst to the realization
of the government’s development goals.
(d) Through the non-adversarial and reconciliatory approach of most of its
processes, ADR is a useful tool for the promotion of peace and social
cohesion, which are fundamental prerequisites for development.
(e) ADR has been proven to complement and assist in de-clogging the
courts as evidenced by the CAM which has recorded a high success
rate hence relieving the courts of hundreds of cases that would have
unnecessarily taken up time and resources20. De- clogging the courts
releases resources to areas that require judicial adjudication, and to
improve their efficiency which is a key element of justice and
business.
20
25
(f) ADR is a self-financing apparatus of justice. The neutral third parties

are not state employees, but independent private practitioners paid by
users of their services. Increased use of ADR therefore in the long run
will reduce the strain on the exchequer, a welcome development in the
current state of austerity in the Country. From a cost-benefit analysis
perspective it is instructive that the government invests in supporting
the growth of ADR.
(g) The need for the promotion of ADR is anchored in the Constitution
under Articles 1, 10, 48, 67(2)(f), 113, 159(2), and 189(4), 252(1)(b)
national legislation, and international and regional human rights
instruments. It is also provided for in development framework at all
levels including in SDG 16.3; Vision 2030; and the Judiciary’s
Sustaining Judicial Transformation Framework.
(h) Inaccessibility to justice is negatively co-related with development,
contributes to growing poverty and social exclusion and undermines
investment, commercial activity, economic growth and democracy. The
high transactional costs of litigation is a disadvantage to the indigent
persons and strains the financial resources of litigants.
It is within this context that the development of the policy is imperative with the
goal of enhancing the development of ADR as an apparatus of justice to
increase its effectiveness, availability and accessibility to the public.
3.2 Policy Vision
The vision of the policy is that of:
A harmonious and cohesive Country, where ADR is the primary and preferred
mode of dispute resolution.
The mission of the policy is:
‘To promote public awareness of ADR, and the development of an efficient
ADR sector that will offer quality, accessible and available ADR services.’
3.4 Policy Objectives
The objectives of the policy are:
(a) To provide definitions for key ADR terms, and to outline the scope of
ADR.
(b) To strengthen the legal and institutional frameworks supporting the ADR
sector.
(c) To increase harmony and efficiency in the sector by enhancing co-
ordination, collaboration and linkage within the sector, and between
ADR actors and the formal justice system.
(d) To strengthen sector governance, regulation, and capacity building.
(e) To strengthen different mechanisms of ADR.
26
(f) To enhance equality and innovation through research, knowledge
development, community of practice and leveraging of ICT.
(g) To promote public awareness and use of ADR and to inculcate
ADR in the Country; and
(h) To promote dispute prevention by inculcating a dispute resolution
mentality and harmonious everyday living.
3.5. Guiding principles
The principles guiding the formulation and implementation of the policy
include:
(a) Article 10 of the Constitution. and especially- human dignity; equity;
social justice; inclusiveness; equality; human rights; non-
discrimination; protection of the marginalized; good governance;
integrity; transparency; accountability; rule of law; and participation of
the people.
(b) Subsidiarity (self-determination)-the idea that a community of higher
order should not interfere with the life of a community of a lower
order, taking over its functions. Under the principle, government
institutions such as the judiciary should undertake only those
initiatives that exceed the capacity of individuals or private
groups/sectors (such as the ADR sector) acting independently. The
government should support the smaller community (ADR sector) and
assist in the co-ordination of its activities with the rest of society for the
sake of the common good.
27
3.6 Policy Approach
3.6.1 Human Rights approach

The human rights-based approach is about empowering people to know
and claim their rights and increasing the ability and accountability of
individualsand institutions who are responsible for respecting, protecting,
and fulfilling rights. It is about ensuring that both the standards and the
principles of human rights are integrated into policymaking as well as
the day-to-day implementation of policies. Fundamental principles in
applying a human rights-based approach in practice include
participation; accountability; non- discrimination and equality;
empowerment and legality. These principles are integrated into this
policy and its envisaged implementation.
3.6.2 Transformative approach
The transformative approach adopted in this policy is based on the idea
of transformative constitutionalism. It is about making any endeavour in
implementation of the constitution, an endeavour to change the realities
of the lives of Kenyans towards greater human dignity and increased
abilities to realize their human potential. The policy envisages the
promotion of ADR in this light.
3.7 Gender and equality considerations
(a) In the formulation and implementation of this policy, the issue of
parties’ differences, the power asymmetries and disadvantage it
creates along gender, age, disability, sexuality, religion, class,
profession, culture, immigration status; and nationality among
others have been considered.
(b) In this regard, the National Dispute Resolution Council proposed
in this policy is mandated to develop a gender and equality
strategy for the ADR sector, including the strategy of gender and
equalitymainstreaming in all elements and activities of the sector
such as training; appointment of third parties; and representation
in the Council, in practice area committees and other entities,
forums and opportunities in the sector.
3.8 Opportunities
(a) Reduction in formality and complexity of litigation.
(b) Reduction in time necessary for contract enforcement releasing
funds for use by disputants.
(c) Use of technology will promote and enhance the administration
ofADR.
28
(d) Use of technology will enhance the accessibility and reduction
incost of ADR.
(e) Complement and de-congest the judicial system.
(f) Promote good governance and preserve relations and
harmonious co-existence.
(g) Enhance consumer protection for e-commerce.
(h) Result in harmonization of global and cross-border standards
andbest practice.
(i) Promote effective and efficient access to justice
through technology and ADR.
(j) Improve accessibility and participation in ADR forums.
(k) Promote parliamentary processes.
3.9 Risks and assumptions
Risks
Risks that may undermine policy implementation if they materialize
include:
(a) Over-formalization of the ADR sector will undermine its utility
asa more flexible, faster, informal mechanism for justice.
(b) Technological disruption of working models in ADR.
(c) Resistance to change by stakeholders and users of ADR.
(d) Inadequate resources to implement the policy.
(e) The use of ADR to bypass corruption detection in the
public adjudicative system thus conceals the vice.
(f) Use of ADR may stifle development of court jurisprudence
inpublic interest disputes.
(g) Use of ADR may not promote consistent application of the law.
Assumptions
(a) That resources (monetary, technological, skilled–
practitioners, institutions etc.) will be available for the
implementation of the policy.
(b) That stakeholders will maintain the momentum for reform
agenda envisaged by this policy.
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4. POLICY STATEMENTS
4.1 Definitions
4.1.1 Meanings and definitions of key ADR terms

(a) This policy adopts the following meanings for key ADR terms:
‘’Alternative Dispute Resolution’’ refers to constitutionally compliant
mechanisms, processes, and methods of dispute resolution, other than
judicial determination.
‘’Alternative’’ as used in the policy is broad, and inclusive and may
mean in different circumstances: other than a judicial determination;
assisted; additional; appropriate; primary; informal; rights-based;
interest-based; and among other similar terms.
‘’Dispute’’ is used inclusively to refer to an unresolved complaint,
grievance, or disagreement. It is used inclusively to include situations
where parties or stakeholders consider that there is a conflict (of
whatever magnitude); situations where no dispute exists but where there
is a need for; clarification of a matter; establishing whether a dispute
exists; fact finding; or where parties do not see themselves as being in
disagreement or aggrieved.
‘’Resolution’’ is used broadly and inclusively to include the
determination of a dispute; narrowing the scope of a dispute;
exchanging of information on a ‘without prejudice basis’; preparing
parties to decide on forum; transforming understanding of the
matter/dispute, relationships or behavior.
‘’ADR Practitioner’ refers to a person offering ADR services to the
public, and who is trained by accredited institutions to offer services
in that specific area of practice of ADR; is certified and accredited by
the relevant accrediting institutions. This definition does not apply to
service providers in TDRMS, local administration and faith-based set-
ups. For TDRMs, an ADR Practitioner must be a person who is by
traditional custom of his/her community recognized and accepted as
possessing the skills, wisdom and social standing required to offer that
service. The term ‘community’ is used here in broad terms to include
social units or groups brought together by different types of affinities
such as: culture; dialect; race; family; neighbourhood; faith; business;
age; and common interests among others.
This definition of ADR practitioner in this policy is exclusive to persons
30
offering ADR services to the public. The policy recognizes that ADR
services are also widely offered in private pro bono set-ups by persons
not formally trained or certified to practice ADR. Many social disputes
are resolved this way. These providers are important actors in the
continuum of ADR who play an important role in those private spaces.
However, where a person holds themselves out as offering such a
service to the public, or habitually offers that service to the public,
whether or not it is paid for, will be required to obtain training and
register as ADR practitioners for the service that they offer. The
principle here is to ensure quality and protection of the public from
possibilities of malpractice.
Whereas the requirement for certification and accreditation does not
apply to traditional dispute resolution mechanisms and other alternative
justice systems, local administration and faith-based providers, this
policy recommends training of these providers in order to among other
things ensure their adherence to Article 159(3) of the Constitution
constitutional principles; mediation and conciliation processes; case
management; adoption and enforcement processes; and basic legal
principles in the main types of disputes handled under these mechanisms
such as family; land; andenvironment among others.
‘’Adjudication’’ This is an informal, speedy, flexible, and inexpensive
process where a neutral third party called the Adjudicator makes a rapid
fair binding decision within disputes.
“Alternative Justice Systems” this policy adapts the definition of the
Alternative Justice Systems Framework Policy21
‘’Arbitration’’ refers to a dispute settlement mechanism where a neutral
third party is appointed by the parties or an appointing authority to
determine disputes between parties and give a final and binding award.
‘’Conciliation’’ is a dispute resolution process where an independent
third party, the conciliator, helps people in a dispute to identify the
disputed issues, develop options, consider alternatives, and try to reach an
agreement. The neutral makes suggestions to the parties on how the
dispute should be resolved.
‘’Mediation’’ is the consensual, confidential process in which the
disputants submit to the facilitation of a neutral third party who assists
them in reaching a negotiated solution. The neutral’s role is to set up the
process, and to facilitate the parties’ communication and own decision
making.
31
‘’Negotiation’’ is the dispute resolution mechanism where parties have
complete autonomy over the forum, the process, and the outcome, and
often reach a mutually acceptable decision without assistance from third
parties.
‘’Ombudsperson’’ an organizationally designated person, receives,
investigates, and facilitates the resolution of complaints, systemic
problems and resolves disputes from individual complainants. The
Ombudsman is characteristically independent and without conflict of
interests.
‘’Traditional Dispute Resolution Mechanisms’’ are methods and
practices employed by communities in the management of conflict and
resolution of disputes, and in which the dispute resolution service is
provided by persons or groups of persons recognized by the community
(according to community custom) as having the wisdom and social
standing to provide that service. TDRM processes are often conducted
and decided according to custom, and often employ mediation,
conciliation and sometimes adjudication techniques.
21
See the Alternative Justice Systems Baseline Policy and Policy Framework available
at https://www.judiciary.go.ke/download/alternative-‐-‐-‐justice-‐-‐-‐systems-‐-‐-‐baseline-‐-‐-‐policy-‐-‐-‐
and-‐-‐-‐ policy-‐-‐-‐framework/
32
(b) The National Dispute Resolution Council, in collaboration

with stakeholders, will develop a glossary of all other
important and emerging ADR terms which will be
reviewed periodically.
4.2 The scope of ADR
This Sessional Paper considers the implications of the
Constitutions’ provisions on ADR, the views expressed by
stakeholders and the public towards a policy framework as a clear
manifestation of the recognition of ADR as a part of the law and
legal system in Kenya. There is now a broad consensus that
multiple doors should remain open for the citizenry to ventilate
their disputes and be empowered to find suitable solutions. As a
country, we can expand access to justice by allocating dispute
resolution to the most appropriate process. For this reason, this
policy takes an inclusive approach to the scope of ADR, to
encompass:
(i) All concepts and typologies of ADR practices,
processes, and services, normally found in ADR practice
globally.
(ii) Civil matters.
(iii) Criminal matters guided by the various practices of
ADR incriminal jurisdiction globally.
(iv) All the practice mechanisms and sectors of
application are covered by this policy.
(v) Matters that could be considered justiciable and those
notjusticiable.
(vi) Private and public disputes.
(vii) Instances where no definitive dispute has crystallized but
where parties may seek clarity in one form or another or
are taking disputepre-emptive action.
(viii) New and innovative forms of ADR such as the Online
Dispute Resolution (ODR).
33
4.3 Strengthening the Institutional Framework for ADR
4.3.1 The Oversight ADR Body and Practice Area Committees

The policy provisions in this Sessional Paper propose that the oversight
of the ADR sector be a collaborative enterprise of State and non-state
actors. The Government of Kenya through the office of state
responsible for legal policy will establish a national body to provide
leadership and oversight for the sector. In this regard this policy
proposes.
(a) There be established a National Dispute Resolution Council for
the ADR sector which shall be a body corporate under the
Cabinet oversight of the Office of the Attorney General &
Department of Justice.
(b) The principal role of the National Dispute Resolution Council
will be to oversee the implementation and monitoring of this
policy, andaccordingly its functions will be among others to—
(i) promote the public understanding of ADR as an
apparatus for dispute resolution, and of ADR
terminologies scope and processes.
(ii) promote further development of the legal and
institutional frameworks supporting the ADR sector
and its practice areas.
(iii) increase harmony and efficiency in the sector by
enhancing and strengthening coordination,
collaboration and linkage within the sector, and
between the sector and the formal justicesystem.
(iv) enhance the quality, availability and accessibility of
ADR services by strengthening sector governance
and regulation.
(v) promote and engage in capacity building for the sector.
(vi) strengthen different mechanisms and the practice of
ADR in allsectors of the Country.
(vii) promote and inculcate the culture of ADR in Kenya
and to increase public confidence and adoption of
ADR as the preferred mode of dispute resolution in
the Country.
(viii) strengthen the ADR sector through research,
knowledge development, community of practice and
leveraging of ICT.
(ix) establish and provide oversight over the Practice Area
Committees and provide advisory over mechanisms
for ADR established by law within other state
34
agencies, except those established under or within the
Judiciary.
(c) Section 5(f) of the Nairobi Centre for International Arbitration Act,
2013 (NCIA) provides as one of the functions of the Centre to:
‘coordinate and facilitate, in collaboration with other lead
agencies and non-State actors, the formulation of national
policies, laws and plans of action on alternative dispute resolution
and facilitate their implementation, enforcement, continuous
review,monitoring and evaluation.
(d) In keeping with the approach set elsewhere in this policy of
leveraging the infrastructure of already existing institutions the
National Dispute Resolution Council (NDRC) proposed in this
policy will be inter-linked with the NCIA to leverage on existing
structures while delineating the functional autonomy of the
NDRC.
The Sessional Paper further proposes that for an inclusive and
participatory management and development of the various disciplines
which operate as autonomous practices and often interlink as hybrids
with each other, Practice Area Committees be formed. As such this
policy proposes that:
(a) Practice Area Committees (PACs)
The National Dispute Resolution Council in collaboration with
the non-state actors in ADR will establish Practice Area
Committees for ADR mechanisms of arbitration; mediation;
adjudication and conciliation; judiciary ADR programs; for state
actors such as the local administration and the Ombudsperson;
and non-state actors such as faith-based institutions and other
emerging areas of practice as it will determine to be necessary for
coordinated development andgrowth of the sector.
(b) The membership of the PACs will comprise of individual
practitioners or practitioners from representative institutions in
the respective practice area to be nominated and organized
asdetermined by the Council.
The functions of the PACs will be to:
(a) enhance the quality of ADR services in their area of practice,
through the development and enforcement of tools of regulation
and governance including codes of conduct; standard operating
procedures; remuneration schedules; training curriculums and
certification and accreditation mechanisms; and Continuous
Professional Development (CPD) programs among other things:
(b) promote public awareness of ADR practice and service.
(c) support the National Dispute Resolution Council in its oversight
functions.
35
(d) promote coordination and collaboration with other practice areas
and with the court system.
(e) promote policy and legislative development in their areas of
practice in order to create alignment with the policy, and the
proposed legislation, and to strengthen the practice.
(f) promote knowledge development and the growth of a community of
practice of the ADR area of practice.
4.3.2 ADR centres
The Sessional Paper recognizes the aspirations of the Kenyan public as
expressed in Articles 1, 10 and 48 of the Constitution. To give effect to
thedesire for broadening access to justice and taking services where they
are most impactful, this policy proposes that the National Dispute
Resolution Council in collaboration with the department of state
responsible for local administration, establish and facilitate the
development and infrastructure capacity of ADR Centres at the
constituency level.
The functions of the ADR Centres will be to:
(i) provide information on all forms of ADR mechanisms and
processes to members of the public.
(ii) provide members of the public with lists of certified ADR
practitioners nearest to them.
(iii) where possible, to offer a sitting facility for ADR sessions for
members of the public.
(iv) provide a platform for receipt of feedback and complaints from
thepublic related to ADR services.
(v) act as collection points for data on dissemination of information
on ADR, access and usage of ADR services and suggestions for
improvements.
4.3.3 Judiciary ADR Centre
The Sessional Paper acknowledges that the judicial system is an
indispensable ally of the dispute resolution mechanisms addressed in
this Policy. The role of the judiciary cannot be supplanted by these
mechanisms. Rather under the principle of subsidiarity the Judiciary
will support the non-court connected mechanisms and promote those
mechanisms within its proceedings that are envisaged under Article
159 (2) (c). Therefore, this policy proposes that.
The Judiciary is to establish an ADR Registry that will:
(i) house and expand the Court Annexed Mediation initiative
andpromote other court-connected ADR.
(ii) promote judicial support for ADR by building the capacity
of judges and other judicial officers.
36
(iii) provide information on all forms of court annexed ADR
mechanisms and processes to litigants and members of the
public.
(iv) provide litigants with lists of certified court annexed ADR
practitioners nearest to them.
(v) where possible, offer a sitting facility for ADR sessions for
litigants.
(vi) provide a platform for receipt of feedback and complaints from
thepublic related to court connected ADR services.
(vii) act as collection points for data on the dissemination of
information on court annexed ADR, access and usage of ADR
services and suggestions for improvements.
(viii) Be the Judiciary focal point for linkage with the non-court
connected ADR system and the National Dispute Resolution
Council.
4.4. Strengthening the Legal Framework
The Sessional Paper proposes that there be enacted a Dispute Resolution
legislation22, which will be the framework legislation for ADR and to give effect
to this policy. The legislation will set out the objectives and broad principles for
ADR; make provision for the establishment of the National Dispute Resolution
Council and connected purposes. Where it is also deemed necessary the legislation
will provide a vehicle for existing and emerging ADR mechanisms. In addition,
this policy proposes the followinglegislative intervention—
(a) There be enacted an omnibus23 legislation to guide and direct the
growth of and provide for mechanisms to strengthen the practice
of—
(i) Mediation.
(ii) Conciliation.
(b) There be enacted distinct legislation to guide and direct the
growth of and provide for mechanisms to strengthen the practice
of Construction Adjudication.24
(c) There be enacted amendments to the Arbitration Act, 1995 to
alignit to emerging practices and judicial pronouncement.
(d) There be enacted amendments to the Nairobi Centre for
International Arbitration Act as shall be necessary to align it
with this policy.
22 See Proposed Dispute Resolution Bill in the annexures
37
(e) All new legislation enacted in the Country at both levels of
government shall, where appropriate incorporate ADR
provisions, and all amendment legislation shall where
appropriate, introduce ADR provisions where none existed in the
amended law.
(f) The Government of Kenya will consider the signing and
ratifying o f the Singapore Convention on Mediation and take
measures to domesticate its provisions in order to promote
international mediation for the benefit of the Republic of Kenya.
(g) All laws that have existing provisions for ADR shall be amended
to align them to this policy.
4.5 Strengthening Linkages, Coordination and Harmonization in the
ADR sector
The Sessional Paper recognizes that Article 159(2)(c) of the
Constitution explicitly requires the Judiciary to promote ADR as a
principle and practice. There will be cases that will require a judge to
listen to the parties, examine the evidence and decide for the parties and
there will also still be others that can more appropriately be resolved
without resort to the court. A good justice system is one where both
options exist side by side and intersect at points of mutual benefit.
23 Ibid
24
See Proposed Construction Adjudication Bill in the annexures
38
As such, the Committee recommends that:

(a) This policy adapts the principle of subsidiarity in the linkage
between the ADR and the court system with the intention of
promoting autonomous operation and growth of the ADR sector.
(b) The linkage between the court connected and non-court
connected ADR mechanisms will be in areas of mutual benefit
such as enforcement and referral.
(c) All service providers in ADR are encouraged as good practice to
collaborate with each other towards the end of dispute
resolution.
4.5.1 Regulation and governance
The Sessional Paper recognizes that strengthening the ADR sector
regulation and governance are of outmost importance in encouraging
harmonization of the Sector. It is also worth acknowledging that the
ADR sector is in its early stages of development as an organized
discipline with potential for growth. Any measure towards regulation
must be weighed against the need to improve and not stifle growth
within the sector. For the sector to develop and thrive for the benefit of
the Republic of Kenya this policy has considered the three options for
regulation being: autonomous self-regulation, non-regulation and
institutional self-regulation.
This policy has settled for a hybrid of autonomous self-regulation and
institutional self-regulation. As a result, this policy proposes that:
(a) The National Dispute Resolution Council provides global
oversight of the sector and develops guiding principles and
models of standards of training and practice.
(b) Practice Area Committees will provide leadership and
management of their areas of practice and, guided by the
standards and guiding principles developed by National Dispute
Resolution Council (NDRC) develop codes of ethics, training
curriculums, and establish certification mechanisms for
practitioners in their areas of practice for approval by the NDRC.
(c) Practice Area Committees will provide disciplinary oversight of
practitioners in their areas and will towards these ends establish
the appropriate mechanisms.
(d) Practice Area Committees will report to the National Dispute
Resolution Council on governance and regulation in their
practice areas.
39
4.5.2 Quality and Standards of Practice in ADR
The Sessional Paper takes cognizance of the need to learn from the
prevalent perceptions that the norms and institutions formed to offer
redress in adjudicative processes have become beholden to practices that
alienate the public. The view that the system of litigation has become
complex, cumbersome, and too detached from the real dispute should
not transferredto ADR.
On the contrary, ADR enters the culture of the dispute and adapts itself
to the ecosystem of that dispute. If applied by people who have the
requisite skills, training, standards of conduct and practice it can be
applied in a variety of different contexts. This requires a level of
professionalism and accountability which at the time of this policy only
exists in ad hoc formations20. Therefore, this policy proposes the
harmonization of standards and training of ADR practitioners to
maintain quality and community of practice that is responsive to the
expectations of the public as follows–
(a) Training
Each ADR practitioner offering services to the public for a fee or
regularly offering such services to the public without pay should be
trained in their area of practice with curriculum made or approved by the
National DisputeResolution Council in collaboration with the respective
PACs.
The National Dispute Resolution Council will provide certification to
ADR institutions for training purposes, and to appropriate professional
institutions with the capacity to offer training services using the
approved curriculum.
(b) Accreditation
There will be a two-tier accreditation model for the sector as follows—
(i) Generalist accreditation which will be given by the institutions
certified by the National Dispute Resolution Council as
accrediting institutions for specific areas of practice.
(ii) Specialist accreditation will be given by institutions certified by
the National Dispute Resolution Council in consultation with
PACs as accrediting institutions for specialized areas of practice.
This will be further accreditation intended for practitioners who
intend to practice under institutions such as the Mediation
Accreditation Committee of the Court Annexed Mediation that
requires practitioners to undergo further specialist training and
accreditation.
(iii) The accreditation rules will be developed by the National
40
DisputeResolution Council in collaboration with PACs and other
stakeholders.
In adapting the two-tier accreditation model, this policy proposes that
the National Dispute Resolution Council implement a recognition and
cross- registration standard to balance the requirements for specialist
accreditation and the need to safeguard the interests of the professional
against duplication of training and costs of accreditation.
(c) Continuous Professional Development (CPD)
The National Dispute Resolution Council in collaboration with PACs
will develop and administer CPD programs for ADR practitioners.,
(d) Institutional ADR providers
All institutional providers of ADR services will be required to register
with the National Dispute Resolution Council, and to obtain a certificate
of registration as an institutional ADR service provider. The National
Dispute Resolution Council will, in collaboration with stakeholders,
develop the criteria and preconditions for the certification, standards and
codes of conduct, renewal, de-certification, and other matters incidental
to the registration.
(e) Standard Operating Procedures
PACs in collaboration with the National Dispute Resolution Council
will develop and integrate into the training curricula, Standard
Operating Procedures (SOPs) for special, sensitive and unique cases
involving vulnerable groups and persons.
(f) Timeframes for ADR processes
PACs, in developing standards and internal rules of process will provide
guidance as to reasonable time frames for ADR matters in their areas of
practice for the purpose of maintaining as much as possible the quality
of timeliness of ADR.
(g) Duty of Care and Limitation of Liability for practitioners
The proposed ADR Legislation will provide for the duty of care and,
protection and immunity for practitioners, institutions, and staff in
providing their professional services.
4.5.3 Recognition and Enforcement of ADR decisions
The Government of Kenya anticipates that this policy will create a
robust environment where ADR can develop and grow, and a culture
emerge for self-enforcement of ADR outcomes as the default.
However, the benefits of ADR will be fully realizable where parties
see avenues for recourse to enforce the outcomes of applying the
41
mechanisms in the event of non- performance.
To support the recognition and enforcement models adapted in
legislation the Sessional Paper proposes the following interventions:
(a) The Judiciary is encouraged to develop a special ADR registry
and depository for expeditious registration and depositing of
ADR settlement agreements for parties who may wish to register
and deposit their ADR agreements.
(b) In establishing the Special ADR Registry and Depository, the
judiciary is encouraged to develop systems to promote
confidentiality of ADR parties.
(c) The Judiciary is also encouraged to establish special mechanisms
for the express adoption of ADR awards and settlements that are
provided for by law.
4.5.4 Capacity Building
(a) Additional training and mentoring of new practitioners
Over and above professional training, the National Dispute Resolution
Council and accredited institutions, in liaison with PACs will:
(i) organize other trainings for practitioners on relevant matters;
(ii) organize Training of Trainers.
(iii) collaborate with NLAS, CSOs and institutional ADR
providers to establish mentoring programmes for newly
trained practitioners.
(b) Training for relevant government officers and agencies
The National Dispute Resolution Council will collaborate with the
relevant state agencies to develop capacity building programmes for
officers and agencies who carry out ADR services or who are otherwise
strategically situated to offer these to members of the public in the course
of their normal work including: the police; Court Users Committees;
judges and magistrates; probation officers; children’s officers, chambers
of commerceand peace committees among others.
(c) Leveraging already existing infrastructure for ADR
With the support from the Government of Kenya, the National Dispute
Resolution Council will assess the preparedness of Ministries,
Departments and Agencies for infrastructure that can be used for ADR
and take action tocollaborate with the respective agencies to leverage on
existing infrastructure for mainstreaming ADR. For instance, the
complaints departments in government offices established through CAJ
initiative can be strengthened to also offer ADR services.
42
(d) ADR Guide for Users
The National Dispute Resolution Council will, in consultation with
PACs develop an ADR guide for users of ADR services detailing key
principles of ADR; glossary of terms of ADR; different mechanisms of
ADR and their benefits. The online version of the guide will be updated
regularly in tandemwith sector developments.
4.5.5 ICT
The National Dispute Resolution Council in collaboration with area
PACs will promote the use of ICT in ADR and towards this end,
commission a study on the same, and develop and review periodically an
ICT strategy for the ADR sector.
4.6 Increasing Availability, Accessibility and Uptake of ADR services.
4.6.1 Availability
The Government of Kenya recognizes that whilst the high transactional
costs of litigation are an impediment to the ideal of access to justice for
all, ADR offers an opportunity for broadening access both in quantitative
and qualitative terms. To attract and maintain a high caliber of
professional practice, the remuneration of ADR practitioners should be
attractive enough and at the same time reasonable to not make the
service unaffordable to most of the public.
The state and non-state actors with mandates for the implementation of
this policy will endeavour to decentralize ADR to the local level with
closest practicable proximity with the public. This Sessional Paper
proposes some of the interventions which the National Dispute
Resolution Council will adopt to realize decentralization to include–
(a) Leverage on the proposed ADR Centres, the existing institutions
and the training of additional practitioners, among other
initiatives proposed in this policy to increase physical
availability of the service to the majority of Kenyans by
devolving availability.
(b) Collaboration with the PACs and faith-based providers, and
other non-state actors to remove barriers to the use of TDRMs
for vulnerable and special groups such as women, youth, and
children, and any other elements that may make the mechanisms
unavailableconstitutionally.
43
4.6.2 Accessibility
The Sessional Paper has recognized that ADR consists of multiple
systems of processes within an environment of shared principles which
include consent of the parties, autonomy of the parties, and processual
flexibility. In the longer term, the credibility and acceptability of the
ADR project will depend on maintaining the core of the system while
creating avenues for development and growth.
This policy proposes that the National Dispute Resolution Council in
conjunction with the Nairobi Centre for International Arbitration, the
Judiciary, PACs and other stakeholders develop strategies to promote
the use of ADR. As a result–
(a) The National Dispute Resolution Council in collaboration with
the PACs w i ll establish a working committee that will
develop harmonized remuneration guidelines for practitioners
and party representatives for each practice area to serve as a
guide in the sector. In so doing, the committee will balance
affordability as a common characteristic of ADR, and market
forces.
(b) The National Dispute Resolution Council and PACs in
collaboration with the National Council for Persons Living with
Disability (PLWD), will develop a strategy for promoting
accessibility of ADR services to PLWD, and especially
enhancing their abilities for direct self-representation in ADR
processes, and for serving as ADRpractitioners.
(c) The National Dispute Resolution Council and PACs will
leverage on use of ICT to reduce barriers inhibiting access for
geographically dispersed population.
4.6.3 Uptake
The Sessional Paper recognizes that whilst the high transactional costs
of litigation are an impediment to the ideal of access to justice for all,
ADR offers an opportunity for broadening access both in quantitative
and qualitative terms. To attract and maintain a high caliber of
professional practice, the remuneration of ADR practitioners should be
attractive enough and at the same time reasonable to not make the
service unaffordable to most of the public.
This policy proposes that the National Dispute Resolution Council will
collaborate with the PACs to engender practices that promote
affordability and facilitate ease of access to ADR. In this regard this
policy proposes as follows-
44
(a) ADR Clauses in contracts
The National Dispute Resolution Council, PACs and stakeholders will
popularize, as a good practice, the inclusion of ‘escalation’ ADR clauses
incontracts and agreements.
(b) Compulsory pre-court ADR for some matters
The Judiciary in conjunction with the National Dispute Resolution
Council and collaboration of other stakeholders will establish guidelines
on civil and criminal matters for which court adjudication will not be
available at the first instance, and which must be first submitted to
ADR.
(c) Compulsory Pre-court ADR information sessions
The judiciary is encouraged, as a good practice, to require all parties
filing matters in court to attend an ADR information session at the
Judiciary ADR Centre, with their lawyers or with an ADR practitioner,
and having done so, if they decide to proceed to court, file a certificate,
with a statement of reasons why ADR is not pursued in their matter.
(d) Establish Pre-litigation ADR incentivization Scheme:
The judiciary is encouraged (in consultation with stakeholders) to
establish an incentivization scheme for court users to attempt ADR as
the default mechanism before resort to court. The scheme may include
pre-litigation protocols and cost sanctions among other best practice
incentives.
(e) ADR in education and training curricula
The Government of Kenya through the National Dispute Resolution
Council in collaboration with the Ministry of Education and other
relevant state actors will ensure that ADR is integrated into the national
school curriculum at all levels as a core subject, and in specialist
training curriculum such as that of the disciplined forces and local
administration officers, among others.
(f) Promoting the ombudsman mechanism of ADR
(i) The National Dispute Resolution Council in collaboration with
the MDAs and SAGAs at both national and county levels and the
CAJ will collaborate to entrench institutional ombudsperson and
encourage adaption of internal dispute management and
institutionalADR policies.
(ii) The National Dispute Resolution Council in collaboration with
the PAC responsible for ADR practice areas, the CAJ, private
sector actors and industry associations will promote the
45
establishment of anombudsperson for the resolution of disputes in
their industries.
(g) ADR policy for NGO and private entities
All non-governmental and private entities operating in the Country are
encouraged as a good practice to develop institutional ADR policies,
and where possible establish ombudsperson offices for their
establishments.
(h) Public awareness
The National Dispute Resolution Council in liaison with the PACs
organize public awareness programmes on ADR, in collaboration with
county governments, local administration and various agents of social
change including: the media, faith-based organizations; schools’ system
and CSOs.
(i) County governments’ role
County governments are encouraged to support ADR Centres and
TDRMsin their regions, and to promote public awareness on ADR.
(j) Promoting Innovation in ADR
The National Dispute Resolution Council together with stakeholders
will; promote innovation, learning and integration of other types of ADR
not yetadopted in the Republic of Kenya as shall be appropriate.
(k) Role of tribunals
Tribunals are encouraged where applicable, to establish a mandatory
ADR door through which all disputants must pass before submitting their
disputes to tribunals, except those seeking urgent injunctive relief. This
door will be within the tribunal or through linkage with ADR providers
including the Court ADR Centre.
4.6.4 Research
(a) The National Dispute Resolution Council and PACs will initiate
research programmes and collaborate with academia and
stakeholders on various areas of ADR with a view to generate
information that will inform the growth and development of the
sector.
(b) The National Dispute Resolution Council and PACs will
develop a strategy for knowledge management within practice
areas and in the ADR sector generally. To this end, they will
among other things:
(i) Identify and disseminate lessons learnt and good practices
46
incollaboration with all stakeholders.
(ii) Ensure technical skills and knowledge are shared among
allstakeholders.
(iii) Establish, manage, and monitor a sectoral knowledge
platform and innovative approaches in practice areas, and
stakeholder institutions.
4.6.5 Community of practice
The National Dispute Resolution Council and PACs will jointly and
separately organize forums for sharing ADR knowledge and building
cohesion, and community of practice in the ADR sector and respective
practice areas.
47
5. POLICY IMPLEMENTATION ARRANGEMENTS
5.1 National Action Plan

This Sessional Paper proposes that a five-year term National Action
Plan (NAP) be developed by the National Dispute Resolution Council to
guide the implementation of the policy. Annual operational plans will be
developed to guide and pace the NAP implementation.
5.2 Resourcing
The Government of Kenya shall integrate ADR into the national budget
resource allocation cycle and through the National Dispute Resolution
Council collaborate with the PACs and other stakeholders to facilitate
resource mobilization for implementation of this policy. The Sessional
Paper proposes that–
(a) The National Government allocates funding for the implementation
of this policy.
(b) The National Dispute Resolution Council will also actively source
funding from alternative sources including:
(i) Private Sector Funding
The private sector is a principal beneficiary of ADR and has an interest
in ensuring timely and quality ADR services for fast enforcement of
contracts and resolution of commercial disputes. The National Dispute
Resolution Council will partner with the private sector to contribute to
thestrengthening of ADR mechanisms.
(ii) Development Partners
The National Dispute Resolution Council will collaborate with
development partners for technical and financial support towards the
implementation of this policy.
(iii) Voluntary Organizations
The National Dispute Resolution Council will leverage the resources of
voluntary organizations including NGOs, CBOs, FBOs, and foundations
to strengthen and support ADR.
(iv) Sector Development Fund
The Sessional Paper proposes that there be established an Alternative
Dispute Resolution Development Fund to be managed by the National
Dispute Resolution Council. The Fund should be resourced by the
revenue collected from various services offered by the National Dispute
ResolutionCouncil to stakeholders, and any other fundraising initiatives
including levies to stakeholders for support to the Fund. The monies paid
into the Fundwill go towards supporting un-funded activities of the
National Dispute Resolution Council.
48
5.3 Monitoring and Evaluation

The Sessional Paper proposes that a monitoring and evaluation
framework should be developed to evaluate the progress made in the
implementation of this policy. The National Dispute Resolution Council
will prepare annual monitoring and evaluation reports and share with all
stakeholders on the implementation progress. The National Dispute
Resolution Council shall report to Parliament once every year on the
implementation of this policy.
5.4 Policy Review
This policy will be reviewed periodically and at least once in each NAP
period to take stock of the progress made in its implementation. This
process will be undertaken in a participatory manner and in collaboration
with other stakeholders.
-END-
49
5.5. Annexures
(i) Proposed Amendments to the Arbitration Act, 1995
CURRENT PROVISION PROPOSED PROVISION
PART I – PRELIMINARY
Section
1. Short title.
2. Application.
3. Interpretation.
PART II – GENERAL PROVISIONS
4. Form of arbitration agreement.
5. Waiver of right to object.
6. Stay of legal proceedings.
7. Interim measures by court.
8. Death of a party.
9. Receipt of written communications.
10. Extent of court intervention.

PART III – COMPOSITION AND
JURISDICTION OF ARBITRAL
TRIBUNAL
11. Determination of number of
arbitrators.
12. Appointment of arbitrators.
13. Grounds for challenge.
14. Challenge procedure.
15. Failure or impossibility to act.
16. Termination of mandate and
substitution of arbitrator.
16A. Withdrawal of arbitrator.
16B. Immunity of arbitrator.
17. Competence of arbitral tribunal to
rule on its jurisdiction.
18. Power of arbitral tribunal.
PART IV – CONDUCT OF
ARBITRAL PROCEEDINGS
19. Equal treatment of parties.
19A. General duty of parties.
20. Determination of rules of
50
procedure.
21. Place of arbitration.
22. Commencement of arbitral
proceedings.
23. Language.
24. Statement of claim and defence.
25. Hearings and written
representations.
26. Default of a party.
27. Experts.
28. Court assistance in taking
evidence.
No. 4 of 1995
Arbitration
[Rev. 2012]
[Issue 1]
A20-4
PART V – ARBITRAL AWARD
AND TERMINATION OF
Section
29. Rules applicable to substance of
dispute.
30. Decision making by panel of
arbitrators.
31. Settlement.
32. Form and contents of arbitral
award.
32A. Effect of award.
32B. Costs and expenses.
32C. Interest.
33. Termination of arbitral
proceedings.
34. Correction and interpretation of
arbitral award; additional award.
PART VI – RECOURSE TO HIGH
COURT AGAINST ARBITRAL
51

AWARD
35. Application for setting aside
arbitral award.
PART VII – RECOGNITION AND
ENFORCEMENT OF AWARDS
36. Recognition and enforcement of
awards.
37. Grounds for refusal of recognition
or enforcement.
PART VIII – MISCELLANEOUS
PROVISIONS
38. Bankruptcy.
39. Questions of law arising in
domestic arbitration.
40. Rules.
41. Government to be bound.
42. Repeal of Cap. 49 and saving.
[Date of assent: 10th August, 1995.]
[Date of commencement: 2nd January,
1996.]
An Act of Parliament to repeal and re-
enact with amendments the Arbitration
Act and to provide for connected
purposes
[Act No. 4 of 1995, L.N. 394/1995,

Act No. 11 of 2009, L.N. 48/2010.]
PART I – PRELIMINARY
1. Short title
This Act may be cited as the
Arbitration Act, 1995.
2. Application
Except as otherwise provided in a
particular case the provisions of this
Act shall apply to domestic arbitration
and international arbitration.
3. Interpretation
(1) In this Act, unless the context
52
otherwise requires—
“arbitration” means any arbitration
whether or not administered by a
permanent arbitral institution;
“arbitration agreement” means an
agreement by the 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;
“arbitral award” means any award of
an arbitral tribunal and includes an
interim arbitral award;
“Arbitral Court” means the
Arbitral Court established by
Section 21 of the Nairobi Centre
for International Arbitration Act,
No. 26 of 2013.
“Registrar” means the Registrar

appointed under Section 9 of the
Nairobi Centre for International
Arbitration Act, No. 26 of 2013.
“The Council” means the

National Dispute Resolution
Council established under section
81 the of Dispute Resolution Act.
“arbitral tribunal” means a sole
arbitrator or a panel of arbitrators;
“party” means a party to an arbitration
agreement and includes a person
claiming through or under a party.
(2) An arbitration is domestic if the
arbitration agreement provides
expressly
53
or by implication for arbitration in
Kenya: and at the time when
proceedings are commenced or the
arbitration is entered into—
(a) where the arbitration is between
individuals, the parties are
nationals of Kenya or are
habitually resident in Kenya;
(b) where the arbitration is between
bodies corporate, the parties are
incorporated in Kenya or their
central management and control
are exercised in Kenya;
(c) where the arbitration is between an
individual and a body corporate—
(i) the party who is an
individual is a national of
Kenya or is habitually
resident in Kenya; and
(ii) the party that is a body
corporate is incorporated in
Kenya or its central
management and control are
exercised in Kenya; or
(d) the place where a substantial part of
the obligations of the commercial
relationship is to be performed, or
the place with which the subject
matter of the dispute is most
closely connected, is Kenya.
(3) An arbitration is international if—

(a) the parties to an arbitration
agreement have, at the time of the
conclusion of that agreement,
their places of business in
different states;
(b) one of the following places is
54

situated outside the state in which
the parties have their places of
business—
(i) the juridical seat of arbitration
is determined by or pursuant
to the arbitration agreement;
or
(ii) any place where a
substantial part of the
obligations of the
commercial relationship is to
be performed or the place
with which the subject-
matter of the dispute is most
closely connected; or
(c) the parties have expressly agreed

that the subject-matter of the
arbitration agreement relates to
more than one state.
(4) For the purpose of sub-section
(3)—
(a) if a party has more than one place
of business, the place of business is
that which has the closest
relationship to the arbitration
agreement;
And
(b) if a party does not have a place of
business, reference is to be made
to his habitual residence.
(5) Where a provision of this Act,
except section 29 leaves the parties free
to determine a certain issue, such
freedom includes the right of the
parties to authorize a third party
including an institution to make that
determination.
55
(6) Where a provision of this Act refers
to the fact that the parties have agreed
or that they may agree or in any other
way refer to an agreement of the
parties, such agreement includes any
arbitration rules referred to in that
agreement.
(7) Where a provision of this Act, other
than sections 26 and 33(2)(a), refers to
a claim, it also applies to a
counterclaim, and where it refers to a
defence it also applies to a defence to
such counterclaim.
PART II – GENERAL PROVISIONS
4. Form of arbitration agreement
(1) An arbitration agreement may be in
the form of an arbitration clause in a
contract or in the form of a separate
agreement.
(2) An arbitration agreement shall be
in writing.
(3) An arbitration agreement is in
writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex,
telegram, facsimile, electronic
mail or other means of
telecommunications which
provide a record of the
agreement; or
(c) an exchange of statements of claim
and defence in which the existence
of an agreement is
alleged by one party and not denied
by the other party.
(4) The reference in a contract to a
document containing an arbitration
clause
56

shall constitute an arbitration
agreement if the contract is in writing
and the reference is such as to make
that arbitration clause part of
the contract.
5. Waiver of right to object
A party who knows that any provision
of this Act from which the parties
may derogate or any requirement under
the arbitration agreement has not been
complied with and yet proceeds with
the arbitration without stating his
objection to such non-compliance
without undue delay or, if a time limit
is prescribed, within such period of
time, is deemed to have waived the
right to object.
6. Stay of legal proceedings
(1) A court before which
proceedings are brought in a matter
which is the subject of an arbitration
agreement shall, if a party so applies
not later than the time when that party
enters appearance or otherwise
acknowledges the claim against which
the stay of proceedings is sought, stay
the proceedings and refer the parties to
arbitration unless it finds—
(a) that the arbitration agreement is
null and void, inoperative or
incapable of being performed; or
(b) that there is not in fact any dispute
between the parties with regard to
the matters agreed to be referred to
arbitration.
(2) Proceedings before the court shall Once proceeding are stayed, give
not be continued after an application
under sub-section (1) has been made
57

and the matter remains undetermined.
(3) If the court declines to stay legal (4) Where the Court stays the
proceedings, any provision of the proceedings, the Court shall refer
arbitration agreement to the effect that the parties to the Nairobi Centre
an award is a condition precedent to for International Arbitration for
the bringing of legal proceedings in appointment of arbitrator(s)
respect of any matter is of no effect in unless the arbitration agreement
relation to those proceedings. provides otherwise.
(5) Where the arbitration

agreement provides for another
appointment body, the Court shall
refer the parties to that body and
proceedings shall be deemed to
have commenced before that body
with 14 days of the reference.
7. Interim measures by court
(1) It is not incompatible with an
arbitration agreement for a party to
request from the High Court, before or
during arbitral proceedings, an interim
measure of protection and for the
High Court to grant that measure.
(2) Where a party applies to the High
Court for an injunction or other interim (3) an injunction or other interim
order and the arbitral tribunal has orders issued under sub-section
already ruled on any matter relevant to (2) shall lapse at the end of 60
the application, the High Court shall days or after such a time as
treat the ruling or any finding of fact extended by the Arbitral Tribunal.
made in the course of the ruling as
conclusive for the purposes of the
application.
8. Death of a party
(1) An arbitration agreement is not
discharged by the death of any party
thereto, either as respects the deceased
or any other party, but in such event is
58

enforceable by or against the personal
representative of the deceased.
(2) The authority of an arbitrator is not
revoked by the death of any party by
whom he was appointed.
(3) Nothing in this section affects the
operation of any law by virtue of which
any right of action is extinguished by
the death of a person.
9. Receipt of, written communications
(1) Unless otherwise agreed in writing
between the parties any
communication made pursuant to or for
the purposes of an arbitration
agreement—
(a) being a communication effected by
facsimile or electronic mail—
(i) is deemed to have been
received if it is transmitted
to a facsimile number or
electronic mailing address,
as the case may be, specified
by the addressee as his number
or address for service; and
(ii) is deemed to have been
received on the day on which
it is so transmitted; or
(b) in any other case—
(i) is deemed to have been received
if it is delivered to the addressee
personally or if it is delivered at
his place of business, habitual
residence or mailing address;
and
(ii) is deemed to have been
received on the day on which
it was so delivered.
(2) Where, after reasonable inquiry, a
59
place of business or residential address
specified by the addressee cannot be
found, or where such a place or
address, or
any mailing address, facsimile number
or electronic mailing address so
specified appears never to have been,
or to be no longer, that of the
addressee, a written communication—
(a) is deemed to have been received if
it is sent to the addressee’s last
known place of business,
residential address or mailing
address, or last known facsimile
number or electronic mailing
address, or by any other means that
provides a record of the attempt to
deliver or transmit the
communication; and
(b) is deemed to have been received on For the purposes of this Act, any
the date specified in that record. notice, communication or
proposal shall be in writing. Any
such notice, communication or
proposal may be delivered by
hand, registered post or courier
service, or transmitted by any
form of electronic
communication (including
electronic mail and facsimile), or
delivered by any other appropriate
means that provides a record of its
delivery.
Any notice, communication or
proposal shall be deemed to have
been received if it is delivered:
(i) to the addressee
personally or to its
authorized
60

representative;
(ii) to the addressee’s
habitual residence,
place of business or
designated address;
(iii) to any address agreed
by the parties;
(iv) according to the
practice of the parties
in prior dealings; or
(v) if, after reasonable
efforts, none of these
can be found, then at
the addressee’s last-
known residence or
place of business.
(3) This section does not apply to the
service of documents for the purpose of
legal proceedings for which provision
is made by rules of court.
10. Extent of court intervention
Except as provided in this Act, no
court shall intervene in matters
governed by this Act.
PART III – COMPOSITION AND
JURISDICTION OF ARBITRAL
TRIBUNAL
11. Determination of number of
arbitrators
(1) The parties are free to determine
the number of arbitrators.
(2) Failing such determination, the
number of arbitrators shall be one.
(3) Where an arbitration agreement
provides that the reference shall be to
two arbitrators, then, unless a contrary
intention is expressed in the
agreement, the agreement is deemed
61

to include a provision that the two
arbitrators shall appoint a third
arbitrator immediately after they are
themselves appointed.
12. Appointment of arbitrators
(1) No person shall be precluded by

reason of that person’s nationality from
acting as an arbitrator, unless
otherwise agreed by the parties.
(2) The parties are free to agree on a
procedure of appointing the arbitrator
or arbitrators and any chairman and
failing such agreement—
(a) in an arbitration with three
arbitrators, each party shall appoint
one arbitrator and the two
arbitrators so appointed
shall appoint the arbitrator;
(b) in an arbitration with two
arbitrators, each party shall
appoint one arbitrator; and
(c) in an arbitration with one
arbitrator, the parties shall agree
on the arbitrator to be appointed.
(3) Unless the parties otherwise agree,
where each of two parties to an
arbitration agreement is to appoint an
arbitrator and one party (“the party
in default”)
(a) has indicated that he is unwilling
to do so;
(b) fails to do so within the time
allowed under the arbitration
agreement;
Or
(c) fails to do so within fourteen days
(where the arbitration agreement
does not limit the time within
62

which an arbitrator must be
appointed by a party), the other
party, having duly appointed an
arbitrator, may give notice in
writing to the party in default that
he proposes to appoint his
arbitrator to act as sole arbitrator.
(4) If the party in default does
not, within fourteen days after
notice under sub-section (3) has been
given —
(a) make the required appointment;
and
(b) notify the other party that he has
done so, the other party may Or,
appoint his arbitrator as sole
arbitrator, and the award of that
(c) upon notice to the defaulting
arbitrator shall be binding on both
parties as if he had been so party request the Registrar to
appointed by agreement. appoint an Arbitrator and notify
both parties of such appointment.
(d) the Registrar shall appoint an

arbitrator within seven days of
receipt of the request under this
section, and the award of that
arbitrator shall be binding on both
parties as if he had been so
appointed by agreement.
(5) Where a sole arbitrator has been (5) Where a sole arbitrator has
appointed under sub-section (4), the been appointed under sub-section
party in default may, upon notice to the (4), the party in default may, upon
other party, apply to the High Court notice to the other party, apply to
within fourteen days to have the the Arbitral Court within fourteen
appointment set aside. days to have the appointment set
aside.
(6) The High Court may grant an 6) The Arbitral Court may grant
63

application under sub-section (5) only an application under sub-section
if it is satisfied that there was good (5) only if it is satisfied that there
cause for the failure or refusal of the was good cause for the failure or
party indefault to appoint his arbitrator refusal of the party in default
in due time. to appoint his arbitrator in due
time.
(7) The High Court, if it grants an (7) The Arbitral Court, if it grants
application under sub-section (5), an application under sub-section
may, by consent of the parties or on (5), may, by consent of the parties
the application of either party, appoint or on the application of either
a sole arbitrator. party, appoint the sole
arbitrator.
(8) A decision of the High Court in (8) A decision of the Arbitral
respect of a matter under this section Court in respect of a matter under
shall be final and not be subject to this section shall be final and not
appeal. be subject to appeal.
(9) The High Court in appointing an (9) The Arbitral Court or the
arbitrator shall have due regard to any registrar of the Centre, in
qualifications required of an arbitrator appointing an arbitrator shall
by the agreement of the parties and to have due regard to any
such considerations as are likely to qualifications required of an
secure the appointment of an arbitrator by the agreement of the
independent and impartial arbitrator parties and to such considerations
and, in the case of a sole or third as are likely to secure the
arbitrator, shall take into account the appointment of an independent
advisability of appointing an arbitrator and impartial arbitrator and, in the
of a nationality other than those of the case of a sole or third arbitrator,
parties. shall take into account the
advisability of appointing an
arbitrator of a nationality other
than those of the parties.
13. Grounds for challenge 13. Grounds for challenge

(1) When a person is approached in (1) When a person is approached
connection with his possible in connection with his possible
appointment as an arbitrator, he shall appointment as an arbitrator, he
disclose any circumstances likely to shall disclose any circumstances
give rise to justifiable doubts as to his likely to give rise to justifiable
64

impartiality or independence. doubts as to his impartiality or
independence including the
grounds that may satisfy a finding
of impartiality enumerated in the
Schedule to this Act.
(2) From the time of his appointment

and throughout the arbitral
proceedings, an arbitrator shall
without delay disclose any such
circumstances to the parties unless the
parties have already been informed of
them by him.
(3) An arbitrator may be challenged
only if circumstances exist that give
rise to justifiable doubts as to his
impartiality and independence, or if he
does not possess qualifications agreed
to by the parties or if he is physically or
mentally incapable of conducting the
proceedings or there are justifiable
doubts as to his capacity to do so.
(4) A party may challenge an arbitrator
appointed by him, or in whose
appointment that party has
participated, only for reasons of which
he becomes aware after the
appointment.
14. Challenge procedure
(1) Subject to sub-section (3), the
parties are free to agree on a procedure
for challenging an arbitrator.
(2) Failing an agreement under sub-

section (1), a party who intends to
challenge an arbitrator shall, within 15
days after becoming aware of the
composition of the arbitral tribunal or
65
after becoming aware of any
circumstances referred to in section
13(3), send a written statement of the
reasons for the challenge to the arbitral
tribunal, and unless the arbitrator who
is being challenged withdraws from his
office or the other party agrees to the
challenge, the arbitral tribunal shall
decide on the challenge.
(3) If a challenge under agreed (3) If a challenge under agreed

procedure or under sub-section (2) is procedure or under sub-
unsuccessful, the challenging party section
may, within 30 days after being (2) is unsuccessful, the
notified of the decision to reject the challenging party may, within 7
challenge, apply to the High Court to days after being notified of the
determine the matter. decision to reject the challenge,
apply to the Arbitral Court to
determine the matter.
(4) On an application under sub- (4) On an application under
section (3), the arbitrator who was sub-section (3), the arbitrator
challenged shall be entitled to appear who was challenged shall be
and be heard before the High Court entitled to appear and be heard
determines the application. before the Arbitral Court
determines the application.
(5) the application under sub-

section (3) shall be determined
within 15 days of filing before the
Arbitral Court.
(6) the Arbitral Court may either

before or after expiry of the period
under sub-section (5) extend the
period for not more
than a further 15 days.
(5) The High Court may confirm the (7) The Arbitral Court may
rejection of the challenge or may confirm the rejection of the
uphold the challenge and remove the challenge or may uphold the
66

arbitrator. challenge and remove the
arbitrator.
(6) The decision of the High Court on (8) The decision of the Arbitral
such an application shall be final and Court on such an application shall
shall not be subject to appeal. be final and shall not be
subject to appeal.
(7) Where an arbitrator is removed by (9) Where an arbitrator is
the High Court under this section, the removed by the Arbitral Court
court may make such order as it thinks under this section, the Arbitral
fit with respect to his entitlement (if Court may make such order as it
any) to fees or expenses or the thinks fit with respect to his
repayment of any fees or expenses entitlement (if any) to fees or
already paid. expenses or the repayment of any
fees or expenses already paid.
(8) While an application under sub- (10) While an application under
section (3) is pending before the High sub-section (3) is pending before
Court, the parties may commence, the Arbitral Court, the arbitral
continue and conclude arbitral proceedings shall be stayed until
proceedings, but no award in such the application is decided.
proceedings shall take effect until the
application is decided, and such an
award shall be void if the application is
successful.
15. Failure or impossibility to act
(1) The mandate of an arbitrator shall
terminate if—
(a) he is unable to perform the
functions of his office or for any
other reason fails to conduct the
proceedings properly and with
reasonable dispatch; or
(b) he withdraws from his office; or
(c) the parties agree in writing to the
termination of the mandate.
(2) If there is any dispute (2) If there is any dispute
concerning any of the grounds referred concerning any of the grounds
to in sub-section (1)(a), a referred to in sub-section (1)(a),
party may apply to the High Court to a
party may apply to the Arbitral
67

decide on the termination of the Court to decide on the
mandate. termination of the mandate.
(3) A decision of the High Court under (3) A decision of the Arbitral
sub-section (2) shall be final and shall Court under sub-section (2)
not be subject to appeal. shall be final and shall not be
subject to appeal.
(4) Where under this section or section
14(2), an arbitrator withdraws from his
office or a party agrees to the
termination of the mandate of an
arbitrator, that shall not imply
acceptance of the validity of any
ground referred to in this section or
section 16(3).
16. Termination of mandate and
substitution of arbitrator
(1) Where the mandate of an arbitrator
is terminated under section 14 or 15, a
substitute arbitrator shall be appointed
in accordance with the procedure that
was applicable to the appointment of
the arbitrator being replaced.
(2) Unless otherwise agreed by the
parties—
(a) where a sole arbitrator or the
Chairman of the arbitral tribunal
is replaced, any hearing previously
held shall be held afresh; and
(b) where an arbitrator, other than a
sole arbitrator or the Chairman of
the arbitral tribunal is replaced, any
hearings previously held may be
held afresh at the discretion of
the arbitral tribunal.
parties, an order or ruling of the arbitral
tribunal made prior to the
replacement of an arbitrator under this
68

section shall not be invalidated solely
because there has been a change in the
composition of the arbitral tribunal.
(4) The Authority of an arbitrator is
personal and ceases on his death.
16A. Withdrawal of arbitrator
(1) Unless otherwise agreed by the (1) Unless otherwise agreed by
parties, an arbitrator who withdraws the parties, an arbitrator who
from his office may, if prior notice has withdraws from his office may, if
been given to the parties, apply to the prior notice has been given to the
High Court— parties, apply to the Arbitral
Court—
(a) to grant him relief from any
liability thereby incurred by him;
and
(b) to make such order as the court
thinks fit with respect to his
entitlement (if any) to fees or
expenses or the repayment of any
fees or expenses already paid.
(2) Where the High Court is (2) Where the Arbitral Court is
satisfied that, in the circumstances, it satisfied that, in the
was reasonable for the arbitrator to circumstances, it was reasonable
resign, it may grant relief on such terms for the arbitrator to resign, it may
as it may think fit. grant relief on such terms as it
may think fit.
(3) The decision of the High Court (3) The decision of the Arbitral
shall be final and shall not be subject Court shall be final and shall not
to appeal. be subject to appeal.
16B. Immunity of arbitrator
(1) An arbitrator shall not be liable for
anything done or omitted to be done in
good faith in the discharge or
purported discharge of his functions as
an arbitrator.
(2) Sub-section (1) shall extend to
apply to a servant or agent of an
arbitrator in respect of the discharge or
69

purported discharge by such a servant
or agent, with due authority and in
good faith, of the functions of the
arbitrator.
(3) Nothing in this section affects any
liability incurred by an arbitrator by
reason of his resignation or
withdrawal.
17. Competence of arbitral tribunal to
rule on its jurisdiction
(1) The arbitral tribunal may rule on its
own jurisdiction, including ruling on
any objections with respect to the
existence or validity of the arbitration
agreement, and for that purpose—
(a) an arbitration clause which forms
part of a contract shall be treated as
an agreement independent of
the other terms of the contract; and
(b) a decision by the arbitral tribunal
that the contract is null and void
shall not itself invalidate the
arbitration clause.
(2) A plea that the arbitral tribunal does
not have jurisdiction shall be raised not
later than the submission of the
statement of defence, however, a party
is not precluded from raising such a
plea because he has appointed, or
participated in the appointment of,
an arbitrator.
(3) A plea that the arbitral tribunal is
exceeding the scope of its authority
shall be raised as soon as the matter
alleged to be beyond the scope of its
authority is raised during the arbitral
proceedings.
(4) The arbitral tribunal may, in either
70

of the cases referred to in sub-section
(2) or (3) admit a later plea if it
considers the delay justified.
(5) The arbitral tribunal may rule on a
plea referred to in sub-sections (2)
and (3) either as a preliminary
question or in an arbitration award on
the merits.
(6) Where the arbitral tribunal rules as (6) Where the arbitral tribunal
a preliminary question that it has rules as a preliminary question
jurisdiction, any party aggrieved by that it has jurisdiction, any party
such ruling may apply to the High aggrieved by such ruling may
Court, within 30 days after having apply to the Arbitral Court, within
received notice of that ruling, to decide 30 days after having received
the matter. notice of that ruling, to decide the
matter.
(7A) The other party shall file and

serve on the applicant, a response
to the application under sub-
section (6), if any, within 14 days
of receipt of the application.
(8A) The Arbitral Court shall

within 30 days of receipt of the
response issue its decision on the
application.
Provided that the Arbitral Court

shall still issue its decision
notwithstanding the fact that a
response has not been filed
within the prescribed time.
(7) The decision of the High Court (9) The decision of the Arbitral
shall be final and shall not be subject Court shall be final and shall not
to appeal. be subject to appeal.
(8) While an application under (10) While an application under
sub-section (6) is pending before the sub-section (6) is pending
High Court the parties may before
the Arbitral Court, the
71

commence, continue and conclude proceedings before the Arbitral
arbitral proceedings, but no award in tribunal shall be stayed until the
such proceedings shall take effect until application is decided.
the application is decided and such
award shall be void if the
application is successful.
18. Power of arbitral tribunal
(1) Unless the parties otherwise
agree, an arbitral tribunal may, on the
application of a party—
(a) order any party to take such interim
measure of protection as the
arbitral tribunal may consider
necessary in respect of the subject
matter of the dispute, with or
without an ancillary order requiring
the provision of appropriate
security in connection with such a
measure;
Or
(b) order any party to provide
security in respect of any claim
or any amount in dispute; or
(c) order a claimant to provide
security for costs.
(2) The arbitral tribunal or a party with
the approval of the arbitral tribunal,
may seek assistance from the High
Court in the exercise of any power
conferred on the arbitral
tribunal under sub-section (1).
(3) If a request is made under sub-
section (2) the High Court shall have,
for the purposes of the arbitral
proceedings, the same power to make
an order for the doing of anything
which the arbitral tribunal is
empowered to order under
72
Sub-section (1) as it would have in
civil proceedings before that Court, but
the arbitral proceedings shall continue
notwithstanding that a request has been
made and is being considered by
the High Court.
PART IV – CONDUCT OF
19. Equal treatment of parties
The parties shall be treated with
equality and each party shall subject to
section 20, be given a fair and
reasonable opportunity to present his
case.
19A. General duty of parties 19A. General Principles and
Duty of the Parties
The parties to arbitration shall do all 1. The object of arbitration is
things necessary for the proper and to obtain a fair resolution
expeditious conduct of the arbitral of disputes by an impartial
proceedings. tribunal without a
necessary delay or
expense.
2. The parties shall be free to
agree how their disputes
are resolved subject only
to the safeguards as
necessary in the public
interest.
3. The parties to arbitration
shall do all things
necessary for the proper
and expeditious conduct
of the arbitral
proceedings.
20. Determination of rules of
procedure
(1) Subject to the provisions of this
Act, the parties are free to agree on the
procedure to be followed by the
73
arbitral tribunal in the conduct of the
proceedings.
section (1), the arbitral tribunal may
conduct the arbitration in the manner it
considers appropriate, having regard to
the desirability of avoiding
unnecessary delay or expense while at
the same time affording the parties a
fair and reasonable opportunity to
present their cases.
(3) The power of the arbitral tribunal

under sub-section (2) includes the
power to determine the admissibility,
relevance, materiality and weight of
any evidence and to determine at what
point an argument or submission in
respect of any matter has been fairly
and adequately put or made.
(4) Every witness giving evidence and
every person appearing before an
arbitral tribunal shall have at least the
same privileges and immunities as
witnesses and advocates in
proceedings before a court.
(5) The tribunal may direct that a party (6) The parties and the tribunal
or witness shall be examined on oath or may consider use of technology
affirmation and may for that purpose including electronic
administer or take the necessary oath or communications and examination
affirmation. of witnesses without requiring
their physical presence in order to
increase the efficiency and
economy of the proceedings with
an effect of hearing under section
25
21. Place of arbitration
(1) The parties are free to agree on the
juridical seat of arbitration and the
location of any hearing or meeting.
(2) Failing an agreement under
74

Sub-section (1), the place of
arbitration shall be determined by the
arbitral tribunal having regard to the
circumstances of the case and
convenience of the parties.
(3) Notwithstanding sub-section (1)
the arbitral tribunal may, unless
otherwise agreed by the parties, meet
at any location it considers appropriate
for consultation among its members,
for hearing witnesses, experts or the
parties, or for the inspection of
documents, goods or other property.
22. Commencement of arbitral
proceedings
Unless the parties otherwise agree, the
arbitral proceedings in respect of a
particular dispute shall commence on
the date on which a request for the
dispute to be referred to arbitration is
received by the respondent.
23. Language
(1) The parties are free to agree upon
the language or languages to be used in
the arbitral proceedings.
section (1), the arbitral tribunal shall
determine the language or
languages to be used in the arbitral
proceedings.
(3) The agreement or determination
under sub-section (1) or (2) shall,
unless otherwise specified, apply to
any written statement by a party, any
hearing and any arbitral award,
decision or other communication by
(4) The arbitral tribunal may order that
any documentary evidence shall be
accompanied by a translation into
the language or languages agreed
75

upon by the parties or determined by
24. Statement of claim and defence
(1) Within the period of time agreed
upon by the parties or determined by
the arbitral tribunal, the claimant shall
state the facts supporting his claim, the
points at issue and the relief or remedy
sought, and the respondent shall state
his defence in respect of these
particulars, unless the parties have
otherwise agreed as to the required
particulars of such
statements.
(2) The parties may submit with their
statements all documents they consider
to be relevant or may add a reference to
the documents or other evidence they
will submit.
(3) Except as otherwise agreed by
the parties, either party may amend
or supplement his claim or defence
during the course of the arbitral
proceedings, unless the arbitral tribunal
considers it inappropriate to allow the
amendment or supplement having
regard to the delay in making it.
25. Hearing and written

representations
(1) Subject to any agreement to the
contrary by the hearing parties, the
arbitral tribunal shall decide whether to
hold oral hearing for the presentation
of evidence or for oral argument, or
whether the proceedings shall be
conducted on the basis of documents
and other materials furnished under
section 24.
(2) Unless the parties have agreed that
76

no hearings shall be held, the arbitral
tribunal shall hold oral hearings at an
appropriate stage of the proceedings,
if so required by a party.
(3) The parties shall be given sufficient
advance notice of any hearing and of
any meeting of the arbitral tribunal
for the purpose of inspection of
documents, goods or other property.
(4) All statements, documents or other

information furnished to, or
applications made to, the arbitral
tribunal by one party shall be
communicated to the other party, and
any expert report or evidential
document on which the arbitral tribunal
may rely in making its decisions shall
be communicated to the parties.
(5) At any hearing or meeting of the

arbitral tribunal of which notice is
required to be given under sub-section
(3), or in any proceedings conducted on
the basis of documents or other
materials, the parties may appear or act
in person or may be represented by
any other person of their choice.
26. Default of a party

Unless otherwise agreed by the
parties, if, without showing sufficient
cause—
(a) the claimant fails to communicate
his statement of claim in
accordance with section
24(1), the arbitral tribunal shall
77

terminate the arbitral proceedings;
(b) the respondent fails to
communicate his statement of
defence in accordance with section
24(1), the arbitral tribunal shall
continue the proceedings without
treating such failure in itself as an
admission of the claimant’s
allegations;
(c) a party which fails to appear at a
hearing or to produce documentary
evidence, the arbitral tribunal
may continue the proceedings
and make the award on the
evidence before it;
(d) the claimant fails to prosecute his
claim, the arbitral tribunal may
make an award dismissing the
claim or give directions, with or
without conditions, for the speedy
determination of the claim;
(e) a party fails to comply with any
order or direction of the tribunal,
the tribunal may make a
peremptory order to the same
effect, prescribing a time for
compliance with the order;
(f) a party fails to comply with a
peremptory order of the tribunal to
provide security for costs, the
tribunal may make an award
dismissing his claim;
(g) a party fails to comply with any
other peremptory order, the
tribunal may—
(i) direct that the party in default
shall not be entitled to rely on
any allegation or material that
78

was the subject-matter of the
order;
(ii) draw such adverse inferences
from the noncompliance as the
circumstances justify;
(iii) proceed to an award on the
basis of such materials as have
been properly provided to it;
(iv) make such order as it thinks fit
as to the payment of costs of
the arbitration incurred as a
result of the noncompliance.
27. Experts
parties, the arbitral tribunal may—
(a) appoint one or more experts to
report to it on specific issues to be
determined by the arbitral tribunal;
and
(b) require a party to give the expert
any relevant information or to
produce or provide access to, any
relevant documents, goods or
other property for inspection.
parties, if a party requests or if the
arbitral tribunal considers it necessary,
the expert shall, after delivery of his
written or oral report, participate in an
oral hearing where the parties shall
have the opportunity to put questions to
him and to present expert witnesses in
order to testify on the points at issue.

parties, the expert shall, upon the
request of a party, make available to
that party
79

for examination all documents, goods
or other property in the expert’s
possession which were provided to
him in order to prepare his report.
28. Court assistance in taking
evidence
The arbitral tribunal, or a party with the
approval of the arbitral tribunal, may
request from the High Court assistance
in taking evidence, and the High Court
may execute the request within its
competence and according to its rules
on taking evidence.
PART V – ARBITRAL AWARD
AND
TERMINATION OF ARBITRAL
PROCEEDINGS
29. Rules applicable to substance of
dispute
(1) The arbitral tribunal shall decide
the dispute in accordance with the rules
of law chosen by the parties as
applicable to the substance of the
dispute.
(2) The choice of the law or legal
system of any designated state shall be
construed, unless otherwise agreed by
the parties, as directly referring to
the substantive law of that state
and not to its conflict of laws rules.
(3) Failing a choice of the law under
sub-section (1) by the parties, the
arbitral tribunal shall apply the rules of
law it considers to be appropriate given
all the circumstances of the dispute.
(4) The arbitral tribunal shall decide

on the substance of the dispute
80

according to considerations of justice
and fairness without being bound by
the rules of law, only if the parties
have expressly authorized it to do so.
(5) In all cases, the arbitral tribunal
shall decide in accordance with the
terms of the particular contract and
shall take into account the usages of
the trade applicable to the particular
transaction.
30. Decision making by panel of
arbitrators
parties, in arbitral proceedings with
more than one arbitrator, any decision
of the arbitral tribunal shall be made
by a majority of all its members.
(2) Notwithstanding sub-section (1), if
authorized by the parties or all the
members of the arbitral tribunal,
questions of procedure may be
decided by the Chairman.
31. Settlement
(1) If, during arbitral proceedings, the
parties settle the dispute, the arbitral
tribunal shall terminate the
proceedings and, if requested by the
parties and not objected to by the
arbitral tribunal, record the settlement
in the form of an arbitral award on
agreed terms.
(2) An arbitral award on agreed terms
shall be made in accordance with
section 32 and shall state that it is an
arbitral award.
(3) An arbitral award on agreed terms
has the same status and effect as any
other arbitral award on the substance
81

of the dispute.
32. Form and contents of arbitral
award
(1) An arbitral award shall be
madein writing and shall be
signed by the arbitrator or the
arbitrators.
(2) For the purposes of sub-section
(1), in arbitral proceedings with more
than one arbitrator, the signatures of
the majority of all the arbitrators shall
be sufficient so long as the reasons
for
any omitted signature are stated.
(3) The arbitral award shall state the
reasons upon which it is based,
unless—
(a) the parties have agreed that no
reasons are to be given; or
(b) the award is an arbitral award on
agreed terms under section 31.
(4) The arbitral award shall state the
date of the award and the juridical seat
of arbitration as determined in
accordance with section 21(1), and the
award shall be deemed to have been
made at that juridical seat.
(5) Subject to section 32B after the (5) Subject to section 32B after
arbitral award is made, a signed copy the arbitral award is made, a
shall be delivered to each party. signed copy shall be delivered to
each party. For the avoidance of
doubt, the Award shall be
considered to have been delivered
to the parties 15 days after
notification that the Award is
ready for collection.
(6) An arbitral tribunal may, at any
time, make a partial award by which
some,
82

but not all, of the issues between the
parties are determined, and the
provisions of his Act applying to
awards of an arbitral tribunal shall,
except in so far as a contrary intention
appears, apply in respect of such partial
award.
32A. Effect of award
Except as otherwise agreed by the
parties, an arbitral award is final and
binding upon the parties to it, and no
recourse is available against the award
otherwise than in the manner provided
by this Act.
32B. Costs and expenses
parties, the costs and expenses of
an arbitration, being the legal and other
expenses of the parties, the fees and
expenses of the arbitral tribunal and
any other expenses related to the
arbitration, shall be as determined and
apportioned by the arbitral tribunal in
its award under this section, or any
additional award under
section 34(5).
parties, in the absence of an award or
additional award determining and
apportioning the costs and expenses of
the arbitration, each party shall be
responsible for the legal and other
expenses of that party and for an equal
share of the fees and expenses of the
arbitral tribunal and any other expenses
relating to the arbitration.
(3) The arbitral tribunal may withhold
the delivery of an award to the parties
83

until full payment of the fees and
expenses of the arbitral tribunal is
received.
(4) If the arbitral tribunal has, under (4) If the arbitral tribunal has,
sub-section (3), withheld the delivery under sub-section (3), withheld
of an award, a party to the arbitration the delivery of an award, a party to
may, upon notice to the other party and the arbitration may, upon notice to
to the arbitral tribunal, and after the other party and to the arbitral
payment into court of the fees and tribunal, and after payment to the
expenses demanded by the arbitral Registrar of the fees and expenses
tribunal, apply to the High Court for an demanded by the arbitral tribunal,
order directing the manner in which the apply to the Arbitral Court for an
fees and expenses properly payable to order directing the manner in
the arbitral tribunal shall be which the fees and expenses
determined. properly payable to the arbitral
tribunal shall be determined.
(5) The fees and expenses found to be (5) The fees and expenses found
properly payable pursuant to such an to be properly payable pursuant to
order shall be paid out of the moneys such an order shall be paid out of
paid into court and the balance of those
the moneys paid to the Registrar
and the balance of those moneys
moneys. if any, shall be refunded to the
applicant. if any, shall be refunded to the
applicant.
(6) The decision of the High Court on (6) The decision of the Arbitral
an application under sub-section (4) Court on an application under
shall be final and not subject to sub-section (4) shall be final
appeal. and not subject to appeal.
(7) The provisions of sub-sections (3) to
(6) have effect notwithstanding any
agreement to the contrary made
between the parties.
32C. Interest
Unless otherwise agreed by the parties,
to the extent that the rules of law
applicable to the substance of the
dispute permit, an arbitral award may
include provision for the payment of
84

simple or compound interest
calculated from such date, at such rate
and with such rests as may be
specified in the award.
[Act No. 11 of 2009, s. 24.] PART IVA – FAST TRACK
ARBITRATION
Section 32D
The provisions of this Part shall
apply to a domestic arbitration
unless the parties have otherwise
agreed that it should not apply to
the arbitration proceedings.
Section 32E Fast track
procedure
(1) Notwithstanding anything
contained in this Act, the
parties to an arbitration
agreement, may, at any stage
either before or at the time of
appointment of the arbitral
tribunal, agree in writing to
have their dispute resolved by
fast track procedure specified
in sub-section (3).
(2) The parties to the arbitration
agreement, while agreeing for
resolution of their dispute by
fast track procedure, may
agree that the arbitral tribunal
shall consist of a sole
arbitrator who shall be chosen
by the parties or by other
procedure as may be agreed
by the parties.
(3) The arbitral tribunal shall
follow the following
procedure while conducting
arbitration proceedings under
85

sub-section (1), —
(a) Notwithstanding the
provisions of section 25,
the arbitral tribunal shall
decide the dispute on the
basis of written pleadings,
documents and
submissions filed by the
parties without any oral
hearing;
(b) the arbitral tribunal shall
have power to call for any
further information or
clarification from the
parties in addition to the
pleadings and documents
filed by them;
(c) an oral hearing may be
held only, if, all the parties
make a request or if the
arbitral tribunal considers
it necessary to have oral
hearing for clarifying
certain issues;
(d) the arbitral tribunal may
dispense with any
technical formalities, if an
oral hearing is held, and
adopt such procedure as
deemed appropriate for
expeditious disposal of the
case.
(4) The award under this section
shall be made within a period
of six months from the date
the arbitral tribunal enters
upon the reference.
(5) If the award is not made
86

within the period specified in
sub-section (4), the
provisions of sub-sections (3)
to (9) of section 32F shall
apply to the proceedings.
(6) The fees payable to the
arbitrator and the manner of
payment of the fees shall be
such as may be agreed
between the arbitrator and the
parties or rules of an
institution appointed by the
parties.
Section 32F Time limit for
arbitral award
(1) Unless the parties otherwise
agree the award shall be
made within a period of
twelve months from the date
the arbitral tribunal enters
upon the reference.
Explanation. — For the
purpose of this sub-section,
an arbitral tribunal shall be
deemed to have entered upon
the reference on the date on
which the arbitrator or all the
arbitrators, as the case may
be, have received notice, in
writing, of their appointment.
(2) The parties may, by consent,
extend the period specified in
sub-section (1) for making
award for a further period not
exceeding six months.
(3) If the award is not made
within the period specified in
sub-section (1) or the
87

extended period specified
under sub-section (2), a party
to the arbitration may apply to
the Arbitral Court to terminate
the mandate of the
arbitrator(s).
(4) Where the Arbitral Court is
satisfied that, in the
circumstances, there is
sufficient cause to terminate
the mandate of the
arbitrator(s) it may grant the
application under sub-
section (4) or extend the
specified upon such terms as
it may deem necessary.
Provided that while extending
the period under this sub-
section, if the Arbitral Court
finds that the proceedings
have been delayed for the
reasons attributable to the
arbitral tribunal, then, it may
order reduction of fees of
arbitrator(s) by not exceeding
five per cent for each month of
such delay.
(5) The extension of period
referred to in sub-section (4)
may be on the application of
any of the parties and may be
granted only for sufficient
cause and on such terms and
conditions as may be imposed
by the Arbitral Court.
(6) While extending the period
88
referred to in sub-section (4),

it shall be open to the Arbitral
Court to substitute one or all
of the arbitrators and if one or
all of the arbitrators are
substituted, the arbitral
proceedings may continue
from the stage already
reached and on the basis of the
evidence and material already
on record, and the arbitrator(s)
appointed under this section
shall be deemed to have
received the said evidence and
material.
(7) In the event of arbitrator(s)
being appointed under this
section, the arbitral tribunal
thus reconstituted shall be
deemed to be in continuation
of the previously appointed
arbitral tribunal.
(8) It shall be open to the Arbitral
Court to impose actual or
exemplary costs upon any of
the parties under this section.
(9) An application filed under
sub-section (5) shall be
disposed of by the Arbitral
Court as expeditiously as
possible and endeavor shall be
made to dispose of the matter
within a period of sixty days
from the date of service of
notice on the opposite party.
(10) An order of the Arbitral

Court made under this
Section shall be final and
enforceable as an order of the
Court.
89
33. Termination of arbitral

proceedings
(1) The arbitral proceedings shall be
terminated by the final arbitral award
or by an order of the arbitral tribunal
under sub-section (2).
(2) The arbitral tribunal shall issue an
order for the termination of the
arbitral proceedings where—
(a) the claimant withdraws his claim,
unless the respondent objects to the
order and the arbitral tribunal
recognises a legitimate interest on
his part in obtaining a final
settlement of the dispute;
(b) the parties agree on the termination
of the arbitral proceedings; or
(c) the arbitral tribunal finds that the
continuation of the proceedings
has for any other reason become
unnecessary or impossible.
(3) Subject to sections 34 and 35, the
mandate of the arbitral tribunal shall
terminate upon the termination of the
arbitral proceedings.
34. Correction and interpretation of
arbitral award; additional award
(1) Within 30 days after receipt of the
arbitral award, unless a different period
of time has been agreed upon
by the parties—
(a) a party may, upon notice in
writing to the other party, request
the arbitral tribunal to correct in the
arbitral award any computation errors,
any clerical or typographical errors or
any other errors of a similar nature;
and
90
(b) a party may, upon notice in writing

to the other party, request the arbitral
tribunal to clarify or remove any
ambiguity concerning specific point
or part of the arbitral award.
(2) If the tribunal considers a request

made under sub-section (1) to be
justified it shall, after giving the other
party 14 days to comment, make the
correction or furnish the clarification
within 30 days whether the comments
have been received or not, and the
correction or clarification shall be
deemed to be part of the award.
(3) The arbitral tribunal may correct
any error of the type referred to in
sub-section (1)(a) on its
own initiative within 30 days after the
date of the arbitral award.
parties, a party may upon notice in
writing to the other party, within 30
days after receipt of the arbitral award,
request the arbitral tribunal to make an
additional arbitral award as to claims
presented in the arbitral proceedings
but omitted from the arbitral award.
(5) If the arbitral tribunal considers the
request made under sub-section (4) to
be justified, it shall make the additional
arbitral award within 60 days.
(6) The arbitral tribunal may extend, if

necessary, the period of time within
which it shall make a correction, give
an interpretation or make an additional
arbitral award under sub-section (2) or
(5).
91
(7) Section 32 shall apply to a
correction or an interpretation of the
arbitral award or to an additional
arbitral award made under this section.
PART VI – RECOURSE TO HIGH
COURT AGAINST ARBITRAL
AWARD
arbitral award
(1) Recourse to the High Court against
an arbitral award may be made only by
an application for setting aside the
award under sub-sections (2) and (3).
(2) An arbitral award may be set aside
by the High Court only if—
(a) the party making the application
furnishes proof—
(i) that a party to the arbitration
agreement was under some
incapacity; or
(ii) the arbitration agreement is not
valid under the law to which the
parties have subjected it or,
failing any indication of that
law, the laws of Kenya; or
(iii) the party making the
application was not given
proper notice of the
appointment of an arbitrator or
of the arbitral proceedings or
was otherwise unable to present
his case; or
92
(iv) the arbitral award deals with
a dispute not contemplated by
or not falling within the terms
of the reference to
arbitration or contains
decisions on matters beyond
the scope of the
reference to arbitration,
provided that if the decisions
on matters referred to
arbitration can be separated
from those not so referred,
only that part of the arbitral
award which contains
decisions on matters not
referred to arbitration may be
set aside; or
(v) the composition of the arbitral

tribunal or the arbitral
procedure was not in
accordance with the
agreement of the parties,
unless that agreement was in
conflict with a provision of
this Act from which the
parties cannot derogate; or
failing such agreement, was
not in accordance with this
Act; or
(vi) the making of the award
was induced or affected by
fraud, bribery, undue
influence or corruption;
(b) the High Court finds that—
(i) the subject-matter of the
dispute is not capable of
settlement by arbitration
under the law of Kenya; or
(ii) the award is in conflict with
the public policy of Kenya.
93
(3) An application for setting aside the
arbitral award may not be made after 3
months have elapsed from the date on
which the party making that
application had received the arbitral
award, or if a request had been made
under section 34 from the date on
which that request had been disposed
of by the arbitral award.
(4) The High Court, when required to
set aside an arbitral award, may, where
appropriate and if so requested by a
party suspend the proceedings to set
aside the arbitral award for such period
of time determined by it in order to give
the arbitral tribunal an opportunity to
resume the arbitral proceedings or to
take such other action as in the opinion
of the arbitral tribunal will eliminate
the grounds for setting aside the
arbitral award.
[Act No. 11 of 2009, s. 26.] (5) The leave of the Court of
Appeal is required for any appeal
from an order for grant or refusal
to set-aside made by the High
Court under this section.
(6) In an application for leave
under sub-section (5), the Court
of Appeal shall not grant leave
unless it is satisfied that in making
the order appealed against the
High Court has relied on grounds
other than those contemplated in
sub-section (2).
(7) If the Court of Appeal grants
94
leave to appeal under sub-section

(6), it may attach such conditions
to the order granting leave as it
considers just.
(8) An application for leave to
appeal under this section shall be
made not later than 14days from
the date of the decision appealed
against.
(9) On an appeal to the Court of
Appeal, the court may –
(a) uphold or set aside the
decision of the High Court
appealed against, and
(b) confirm, vary, or set aside the
whole or part of the award,
(10) No further appeal shall lie
from a decision of the Court of
Appeal.
PART VII – RECOGNITION AND
ENFORCEMENT OF AWARDS
36. Recognition and enforcement of
awards
(1) A domestic arbitral award, shall
be recognized as binding and, upon
application in writing to the High
Court, shall be enforced subject
to this section and section 37.
(2) An international arbitration
award shall be recognised as binding
and enforced in accordance to the
provisions of the New York
Convention or any other convention to
which Kenya is signatory and relating
to arbitral awards.
(3) Unless the High Court otherwise
orders, the party relying on an arbitral
award or applying for its enforcement
95

must furnish—
(a) the original arbitral award or a
duly certified copy of it; and
(b) the original arbitration agreement
or a duly certified copy of it.
(4) If the arbitral award or arbitration
agreement is not made in the English
language, the party shall furnish a duly
certified translation of it into the
English language.
(5) In this section. the expression

“New York Convention” means the
Convention on the Recognition and
Enforcement of Foreign Arbitral
Awards adopted by the United Nations
General Assembly in New York on the
10th June, 1958, and acceded to by
Kenya on the 10th February, 1989,
with a reciprocity reservation.
37. Grounds for refusal of recognition

or enforcement
(1) The recognition or enforcement of
an arbitral award, irrespective of the
state in which it was made, may be
refused only—
(a) at the request of the party against
whom it is invoked, if that party
furnishes to the High Court proof
that—
(i) a party to the arbitration
agreement was under some
incapacity; or
(ii) the arbitration agreement is not
valid under the law to which the
parties have subjected it or,
failing any indication of that
96

law, under the law of the state
where the arbitral award was
made;
(iii) the party against whom the
arbitral award is invoked was
not given proper notice of the
appointment of an arbitrator or
of the arbitral proceedings or
was otherwise unable to
present his case; or
(iv) the arbitral award deals with
a dispute not contemplated by
or not falling within the terms
of the reference to arbitration,
or it contains decisions on
matters beyond the scope of the
reference to arbitration,
provided that if the decisions on
matters referred to arbitration
can be separated from those
not so referred, that part of the
arbitral award which contains
decisions on matters referred
to arbitration may be
recognized and enforced; or
(v) the composition of the arbitral

tribunal or the arbitral
procedure was not in
accordance with the agreement
of the parties or, failing any
agreement by the parties, was
not in accordance with the law
of the state where the
arbitration took place; or
(vi) the arbitral award has not yet
become binding on the parties
or has been set aside or
suspended by a court of the
state in which, or under the law
of which, that arbitral award
was made; or
97

(vii) the making of the arbitral
award was induced or affected
by fraud, bribery, corruption or
undue influence;
(b) if the High Court finds that—
(i) the subject-matter of the dispute
is not capable of settlement by
arbitration under the law of
Kenya; or
(ii) the recognition or enforcement
of the arbitral award would be
contrary to the public policy of
Kenya.
(2) If an application for the setting
aside or suspension of an arbitral
award has been made to a court
referred to in sub-section
(1)(a)(vi), the High Court may, if it
considers it proper, adjourn its
decision and may also, on the
application of the party, claiming
recognition or enforcement of the
arbitral award, order the other
party to provide appropriate
security.
PART VIII – MISCELLANEOUS
PROVISIONS
38. Bankruptcy
(1) Where it is provided by a term in a
contract to which a bankrupt is a party
that any differences arising out of or in
connection with the contract shall be
referred to arbitration, then if the
trustee in bankruptcy adopts the
contract, that term is enforceable by or
against him so far as relates to those
differences.
98

(2) Where a person who has been
adjudged bankrupt had, before the
commencement of the bankruptcy,
becomes a party to an arbitration
agreement, and any matter to which the
agreement applies requires to be
determined in connection with or for the
purposes of the bankruptcy proceedings,
then if the case is one to which sub-
section (1) does not apply—
(a) any other party to the agreement or,
with the consent of the committee
of inspection, the trustee in
bankruptcy may apply to the court
having jurisdiction in the
bankruptcy proceedings for an
order directing that the matter in
question shall be referred to
arbitration in accordance with the
agreement; and
(b) the court, if it is of the opinion that,
having regard to all the
circumstances of the case, the
matter ought to be determined by
arbitration, may make an order
accordingly.
(3) This section shall apply in domestic
arbitration or if the bankrupt person is
a Kenyan or if the law of Kenya is
applicable according to the rules of
conflict of laws.
39. Questions of law arising in
domestic arbitration.
Where in the case of a domestic
arbitration, the parties have agreed
that—
(a) an application by any party may be
made to a court to determine any
question of law arising in the
course of the arbitration; or
99

(b) an appeal by any party may be made
to a court on any question of law
arising out of the award, such
application or appeal, as the case
may be, may be made to the High
Court.
(2) On an application or appeal being
made to it under sub-section (1) the
High
Court shall—
(a) determine the question of law
arising;
(b) confirm, vary or set aside the
arbitral award or remit the matter to
the arbitral tribunal for re-
consideration or, where another
arbitral tribunal has been
appointed, to that arbitral tribunal
for consideration.
(3) Notwithstanding sections 10 and
35 an appeal shall lie to the Court of
Appeal against a decision of the High
Court under sub-section (2)—
(a) if the parties have so agreed
that an appeal shall lie prior to the
delivery of the arbitral award;or
(b) the Court of Appeal, being of the

opinion that a point of law of
general importance is involved the
determination of which will
substantially affect the rights of
one or more of the parties, grants
leave to appeal, and on such appeal
the Court of Appeal may exercise
any of the powers which the High
Court could have exercised under
sub-section (2).
100

(4) An application or appeal under this
section shall be made within the time
limit and in the manner prescribed by
the Rules of Court applicable, as the
case may be, in the High Court or the
Court of Appeal.
(5) When an arbitral award has been
varied on appeal under this section, the
award so varied shall have effect as if
it were the award of the arbitral
tribunal concerned.
40. Rules
The Chief Justice may make rules of
Court for—
(a) the recognition and enforcement of 40 A. Decisions of the Arbitral
arbitral awards and all proceedings Court.
consequent thereon or incidental Any decision of the Arbitral Court
thereto; under this Act shall be deemed to
be an order of the Court and
enforceable as an order
of the Court.
(b) the filing of applications for
setting aside arbitral awards;
(c) the staying of any suit or
proceedings instituted in
contravention of an arbitration
agreement;
(d) generally all proceedings in court
under this Act.
41 Codes of Practice 41. Codes of practice
1. For the purpose of
domestic arbitration
101
practice the Council shall,

in consultation with the
arbitration practice area
committee —
(a) prepare and publish a
code or codes of practice
to set standards for
arbitrations, or
(b) approve a code or codes
of practice prepared by an
arbitration body.
2. A code of practice
referred to in section 41
may include provisions in
relation to any of the
following:
(a) continuing professional
development training
requirements for
arbitrators;
(b) procedures to be followed
by arbitrators in the
conduct of a arbitrators;
(c) procedures to be followed
by arbitrators in the
conduct of an arbitration
requiring consultation, by
an arbitrator, with a child;
(d) ethical standards to be
observed by arbitrators
during an arbitration;
(e) confidentiality of an
arbitration;
(f) procedures to be followed
by a party for redress in
the event of
dissatisfaction with the
102

conduct of an arbitration;
(g) determination of the fees
and costs of an
arbitration; and
(h) any other matters relevant
to the conduct of
arbitration.
3. Before publishing or
approving a code of
practice under sub-
section 1, the Council
shall—
(a) publish a notice in at least
one daily newspaper with
a national circulation in
Kenya—
(i) indicating the proposal to
publish or approve a code
under the section,
(ii) indicating that the
proposed code is
available for inspection
on the website for a
period specified in the
notice .and
(iii) stating that submissions
in relation to the proposed
code may be made in
writing to the Council
before a date specified in
the notice (and have
regard to any submissions
received pursuant to
paragraph (a) (iii).
4. Where the Council
prepares or approves a
code of practice under
this section, a notice of
103
the preparation or
approval shall be
published by notice in the
gazette and the notice
shall specify the date
from which the code shall
come into operation.
5. Subject to sub-section
(6),the Council may—
(a) amend or revoke a code
of practice prepared or
approved under this
section, or
(b) withdraw approval in
respect of any code of
practice previously
approved under this
section.
6. The requirements of sub-
sections (1) and (2) shall,
with all necessary
modifications, apply to a
code of practice that the
Council intends to amend
or revoke or in relation to
which the Council intends
to withdraw the approval.
7. Where the Council
amends or revokes, or
withdraws approval in
respect of, a code of
practice under this
section, a notice to that
effect shall be published
in the Gazette specifying-
(a) the code to which the
amendment, revocation or
withdrawal of approval,
104
as the case may be,
relates,
(b) whether the code is to be
amended or revoked or
whether approval in
relation to the code is to
be withdrawn,
(c) if the code is to be
amended, particulars of
the amendment, and
(d) the date from which the
amendment, revocation or
withdrawal of approval,
as the case may be,
commences.
41. Government to be bound
This Act shall bind the Government.
42. Repeal of Cap. 49 and saving
(1) The Arbitration Act (Cap. 49) is
repealed.
(2) The repeal of the Arbitration Act
(Cap. 49) shall not affect any arbitral
proceedings commenced before the
coming into operation of thisAct.
(3) For the purposes of this sub-

section, any arbitral proceedings shall
be deemed to have commenced on the
date the parties have agreed the
proceedings should be commenced or,
failing such agreement, on the date of
receipt by the respondent of a request
for the dispute to be referred to
arbitration.
105
(ii) Draft Construction Adjudication Bill

THE CONSTRUCTION ADJUDICATION BILL
An Act of Parliament to provide a mechanism for speedy dispute
resolution through adjudication, to facilitate regular and timely payment,
to provide remedies for the recovery of payment in the construction
industry and to provide for connected and incidental matters.
Short title
This Act may be cited as the Construction Adjudication Act.
1. Interpretation
(1) In this Act, unless the context otherwise requires—
“adjudication certificate” means a certificate issued by the Adjudicator
under section 10 of this Act;
“adjudication decision” means the decision made by an adjudicator under
section 8 of this Act;
“adjudication practice area committee” means a committee established for
adjudication under section 82 of the Dispute Resolution Act;
“adjudication proceedings” means the process of adjudication under this
Act;
“adjudicator” means an individual appointed to adjudicate a dispute under
this Act;
“claimant” means an aggrieved party in a construction contract who
initiates adjudication proceedings;
“construction contract” means an agreement with a person for any of the
following—
(a) the carrying out of construction operations;
(b) arranging for the carrying out of construction operations by others,
whether under sub-contract to him or otherwise;
(c) providing his own labour, or the labour of others, for the carrying out of
construction operations.
(2) References in this Act to a construction contract include an agreement—
(a) to do architectural, design, or surveying work, or
(b) to provide advice on building, engineering, interior, or exterior decoration
or on the laying-out of landscape, in relation to construction operations.
“construction work” means the construction, extension, installation, repair,
maintenance, renewal, removal, renovation, alteration, dismantling, or
demolition of—
106
(a) any building, erection, edifice, structure, wall, fence or chimney, whether
constructed wholly or partly above or below ground level;
(b) any road, harbour works, railway, cableway, canal or aerodrome;
(c) any drainage, irrigation or river control work;
(d) any electrical, mechanical, water, gas, oil, petrochemical, or
telecommunication work; or
(e) any bridge, viaduct, dam, reservoir, earthworks, pipeline, sewer,
aqueduct, culvert, drive, shaft, tunnel, or reclamation work, and
includes—
(i) any work which forms an integral part of, or are preparatory to or
temporary for the works described in paragraphs (a) to (e), including site
clearance, soil investigation and improvement, earth-moving,
excavation, laying of foundation, site restoration and landscaping; and
(ii) procurement of construction materials, equipment or workers, as
necessarily required for any works described in paragraphs (a) to (e);
“natural person” means an individual and does not include a corporation;
“non-paying party” means a party against whom a payment claim is made
pursuant to a construction contract;
“construction adjudication body” means a person accredited under section
18;
“payment” means a payment for work done or services rendered under
theexpress terms of a construction contract;
“payment claim” means a claim submitted under section 4 of this Act
“payment schedule” means a schedule submitted under section 4 of this
Act;
“principal” means a party who has contracted with and is liable to make
payment to another party where that other party has in turn contracted
with and is liable to make payment to a further person in a chain of
constructioncontracts;
“respondent” means the person on whom the notice of adjudication and
adjudication claim has been served;
“site” means the place where the construction work is affixed whether on- shore
or off-shore;
“unpaid party” means a party who claims payment of a sum which has not been
paid in whole or in part under a construction contract;
“working day” means a calendar day but exclude weekends and public
holidays.
(3) For the purpose of section 2(2) “dispute” includes any unresolved
complaint, grievance or disagreement arising out of a construction contract.
107
2. Application
(1) This Act applies to a construction contract made in writing relating to
construction work carried out wholly or partly within Kenya.
(2) A party to a construction contract has the right to refer a dispute arising
under the contract for adjudication in accordance with this Act.
(3) This Act does not apply to a construction contract where a different procedure
is prescribed by or under law or the contract.
3. Agreement to Adjudicate
(1) A construction contract shall be in writing and shall provide for resolution of
disputes arising under that contract through adjudication.
(2) A party may give notice in writing at any time of his intention to refer a
dispute to adjudication.
(3) An agreement to adjudicate disputes is in writing if it is contained in—
(a) a document signed by the parties;
(b) an exchange of letters, telex, telegram, facsimile, electronic mail or other
means of telecommunications which provide a record of the agreement; or
(c) an exchange of statements of claim and defence in which the existence of an
agreement is alleged by one party and not denied by the other party.
4. Payment Claim and Payment Schedules
(1) Claimant may serve a payment claim upon the Respondent in respect of
works, goods services that have become due and payable.
(2) The payment claim must be served in accordance with the provisions of
the contract or not later than 30 days from days from the date of
completion ofthe works.
(3) The payment claim shall state the claimed amount together with any
supporting documents.
(4) The respondent named in a payment claim shall respond by providing a
payment schedule which comprises the following—
(a) The respondent’s response which shall identify the payment claim, shall
state the amount if different and the reasons for the difference as well as
anyreason for any amount withheld.
(b) The respondent may vary a payment claim in accordance with a
payment schedule in writing.
5. Commencement of Adjudication
(1) A claimant may apply to a construction adjudication body, chosen by
the claimant, for adjudication of a payment claim (an adjudication
application)if—
(a) the respondent provides a payment schedule under this part, but—
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(i) the scheduled amount indicated in the payment schedule is less than
the claimed amount indicated in the payment claim; or
(ii) the respondent fails to pay the whole or any part of the scheduled amount
tothe claimant by the due date for payment of the amount; or
(b) the respondent fails—
(i) to provide a payment schedule within 14 days after the payment claim is
given; and
(ii) to pay the whole, or any part of, the claimed amount to the claimant by
thedue date.
(2) An adjudication application to which paragraph (b) applies shall not be
made unless—
(a) the claimant has within 30 days immediately following the due date for
payment, notified the respondent of the claimant's intention to apply for
adjudication of the payment claim; and
(b) the respondent had an opportunity to provide a payment schedule to the
claimant within 7 days after receiving the claimant’s notice.
(3) The notice of adjudication shall be sent to all parties concerned and
shallinclude the following—
(a) The name and contact details of the parties in the contract;
(b) The nature and a brief description of the dispute;
(c) The remedy sought; and
(d) The name and contact details of the specified adjudicator, if any, or
the relevant dispute adjudication board provided in specific contracts.
(4) An adjudication application—
(a) shall be in writing; and
(b) if the application is made under sub-section (1) (a) —shall be made
within14 days after the claimant receives the payment schedule; and
(c) if the application is made under sub-section 1 (a) (ii) - shall be made
within30 days after the due date for payment; and
(d) if the application is made under sub-section 1 (b)—shall be made
within14days after the earlier of—
(i) the end of the 7-day period mentioned in sub-section 1 (b); and
(ii) the day the claimant receives the payment schedule.
(e) if the construction adjudication body has set an application fee—shall be
accompanied by the application fee; and
(f) shall identify the payment claim and any payment schedule to which it
relates; and
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(g) may contain the submissions relevant to the application that the
claimant chooses to include.
(5) The construction adjudication body shall refer the application to an
eligible adjudicator within 14 days from the date of receipt of the
adjudication application.
(6) The adjudication application under this Section shall state;
(a) the amount claimed and due date for payment of the amount claimed;
(b) details to identify the cause of action including the provision in the
construction contract to which the payment relates;
(c) description of the work or services to which the payment relates; and
(d) a statement that it is made under this Act.
(7) Where a construction adjudication body refers an adjudication
application to an adjudicator, the adjudicator may give a notice of
acceptance to the claimant and the respondent.
(8) Where an adjudicator gives a notice of acceptance under sub-section (6)
the adjudicator shall give the respondent a copy of the adjudication
application.
(9) Where an adjudicator gives a notice of acceptance under sub-section (6),
the adjudicator is taken to be appointed as the adjudicator for the
adjudication application from the later of—
(a) the day the claimant receives the notice of acceptance; and
(b) the day the respondent receives the notice of acceptance.
6. Adjudication Response
(1) A respondent may give an adjudicator a response to a claimant's
adjudication application (the adjudication response) within 10 days after
therespondent receives a copy of the adjudication application.
(2) The adjudication response—
(a) shall be in writing; and
(b) shall identify the adjudication application to which it relates; and
(c) may contain submissions relevant to the response.
(3) The respondent may give an adjudication response only if the
respondent has provided a payment schedule to the claimant within the
time mentionedin section 5(1) (b) or section 5(2) (b).
(4) The respondent shall not include in the adjudication response any
reasons for withholding payment unless those reasons have already been
included in the payment schedule provided to the claimant.
(5) A copy of the adjudication response shall be given to the claimant not
laterthan 2 days after the response is given to the adjudicator.
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7. Adjudication Procedure
(1) The adjudicator shall not decide on the adjudication application until
after the end of the period within which the respondent may give an
adjudicationresponse.
(2) The adjudicator shall not consider an adjudication response unless the
respondent gives the response to the adjudicator within the time required
bysub-section 3.
(3) A respondent may give an adjudicator a response to a claimant's
adjudication application (the adjudication response) within 10 days after
the respondent receives a copy of the application.
(4) The adjudicator shall decide an adjudication application as soon as
possible but not later than—
(a) Where the respondent is entitled to give an adjudication response under
sub-section 3 - 14 days after the earlier of—
(i) the date on which the adjudicator receives the adjudication response; and
(ii) the date on which the adjudication response is required to be given to
the adjudicator under sub-section 3 or
(b) Where the respondent is not entitled to give an adjudication response
under sub-section 3 - 14 days after the respondent receives a copy of the
adjudication application; or
(c) Where a further time is agreed between the claimant and the respondent,
thefurther agreed time.
(5) In a proceeding to decide an adjudication application, an adjudicator
may ask for further written submissions from either party; and
(a) where a further submission is lodged by a party—shall allow the other
partyto comment on the submission;
(b) may set deadlines for further submissions and comments by the parties;
(c) may call a conference of the parties;
(d) may carry out an inspection of any matter related to the claim.
(6) Where the adjudicator calls a conference—
(a) the conference shall be conducted informally; and
(b) the parties may be represented at the conference.
(7) The adjudicator’s power to decide an adjudication application is not
affected by the failure of a party—
(a) to provide a response; or
(b) to make a submission within time; or
(c) to comment on a submission within time; or
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(d) to comply with the adjudicator’s call for a conference.
8. Adjudication Decision
(1) The adjudicator shall decide—
(a) the amount if any, to be paid by the respondent to the claimant
(theadjudicated amount); and
(b) the day on which the amount became or becomes payable; and
(c) the rate of interest, if any, payable on the adjudicated amount.
(2) In deciding an adjudication application, the adjudicator shall only
considerthe following:
(a) this Act;
(b) the construction contract to which the application relates;
(c) the payment claim to which the application relates, together with any
submission, including relevant documentation, properly made by the
claimant in support of the claim;
(d) the adjudication application;
(e) the payment schedule, if any, to which the application relates, together
with any submission, including relevant documentation, properly made
by the respondent in support of the schedule;
(f) the adjudication response, if any; and
(g) the result of any inspection by the adjudicator of any matter related to
theclaim.
(3) The adjudicator’s decision shall—
(a) be in writing; and
(b) include the reasons for the decision, unless the claimant and the
respondent have both asked the adjudicator not to include the reasons in
the decision.
(4) Where the adjudicator values construction work or related goods and
services, the adjudicator and any other adjudicator shall give the work,
or the goods and services—
(a) in a later adjudication involving the valuation of the work or of the
goods and services—the same value as the value decided by the
adjudicator; or
(b) where the claimant or respondent satisfies the adjudicator that the value
of the work, or the goods and services, has changed since the
valuation—a different value to the value decided by the adjudicator.
(5) The adjudicator may, on his own initiative or on the application of the
claimant or the respondent, correct a decision for—
(a) a clerical or arithmetical mistake or defect of form; or
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(b) a material miscalculation of figures; or
(c) a mistake in the description of any person, thing or matter mentioned in
thedecision.
(6) For purposes of sub-section 5, the application of the claimant or the
respondent for the correction must be made within 5 days of receipt of
an adjudicator’s decision and such correction shall be made not later
than 30 days.
9. Payment of Adjudicated Amount
Where an adjudicator decides that a respondent shall pay an adjudicated
amount to a claimant, the respondent shall pay the amount to the
claimant on or before—
(a) seven days after the date the adjudicator’s decision is rendered; or
(b) the date on which the adjudicator determines the amount becomes due
andpayable.
10. Failure to pay adjudicated amount
(1) Where an adjudicator has issued an adjudicator’s decision and the
respondent fails to pay the whole, or any part of, an adjudicated amount
pluscosts or interest to the claimant under Section 9, the claimant may—
(a) ask the adjudicator to provide an adjudication certificate within 3 days
fromthe date of the request; and
(b) give the respondent notice of the claimant's intention to suspend
carrying out construction work, or to suspend supplying related goods
and services,under the construction contract.
(2) An adjudication certificate shall state the following:
(a) the name of the claimant;
(b) the name of the respondent;
(c) the adjudicated amount;
(d) the date when payment of the adjudicated amount was required to be
paidto the claimant;
(e) where part of an adjudicated amount has been paid—the amount of
thepart payment.
11. Application of the Evidence Act
(1) The Evidence Act Cap 80 shall not apply to proceedings under this Act.
12. Jurisdiction of the High Court
(1) Except as provided in this Act, no court shall intervene in matters
governed by this Act.
13. Enforcement of adjudication decision as judgment debt
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(1) An adjudication certificate may be enforced as a decree of the High Court.
(2) The adjudication certificate shall be accompanied by the Adjudicator’s
Decision and an affidavit by the applicant stating the outstanding amount
atthe time the certificate is filed or relief granted.
(3) Where the affidavit states that part of the adjudicated amount has been
paid, the amount to be recovered is the unpaid portion of the adjudicated
amount.
(1) Where any party to an adjudication commences proceedings to set aside
the adjudication determination or the decree obtained pursuant to section
13, he shall pay into the court as security the unpaid portion of the
adjudicated amount that he is required to pay, in such manner as the
court directs, pending the final determination of those proceedings.
(2) The grounds on which a party to an adjudication may commence
proceedings under sub-section (1) include, but are not limited to, the
following:
(a) the payment claim was not served in accordance with section 4;
(b) the claimant served more than one payment claim in respect of a
progress payment, otherwise than permitted under section 4;
(c) the payment claim was in respect of a matter that has already been
adjudicated on its merits in proceedings under this Act;
(d) the adjudication application or the adjudication review application was
not made in accordance with the provisions of this Act;
(e) the adjudicator failed to comply with the provisions of this Act in
making the adjudication determination;
(f) the adjudication determination requires the claimant to pay an
adjudicatedamount to the respondent;
(g) a breach of the rules of natural justice occurred in connection with
the making of the adjudication determination;
(h) the making of the adjudication determination was induced or affected by
fraud or corruption.
(3) A respondent may not commence proceedings under sub-section (1) on
any ground if the objection to support that ground was not included in
the respondent’s adjudication response, unless —
(a) the circumstances of the objection to support that ground only arose
after the respondent lodged the adjudication response with the
authorised nominating body; or
(b) the respondent could not reasonably have known of those circumstances
when lodging the adjudication response with the authorised nominating
body.
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15. Proceedings at the High Court
(1) All proceedings under this Act shall be commenced by way of Notice of
Motion accompanied by a supporting Affidavit.
16. Substitution of Adjudicator
(1) This part applies where—
(a) a claimant fails to receive an adjudicator’s notice of acceptance of an
adjudication application within 5 days after the application is made; or
(b) an adjudicator who accepts an adjudication application fails to decide
the application within the time allowed by section 7 (4) being 14 days
after receipt of respondent’s adjudication response or 14 days after
respondent receives the adjudication application if he is not entitled to
issue an adjudication response.
(2) The claimant—
(a) may by notice in writing served on the adjudicator or construction
adjudication body, appoint a new adjudicator; and
(b) the adjudication application shall proceed within the timelines under
section 7.
17. Adjudicator qualifications
(1) A person is eligible to be an adjudicator if the person has successfully
completed an approved training course and is accredited in accordance
withthe accreditation rules made or approved by the Council.
(2) Notwithstanding the generality of sub-section 1 an adjudicator in a
construction adjudication shall-
(a) be impartial and independent of the parties;
(b) declare any matter that raises a conflict of interest;
(3) An adjudicator may with the consent of all the parties adjudicate on
more than one dispute arising under the same contract.
18. Construction Adjudication body
(1) The Council may, subject to section 20 grant accreditation to a person to
perform the services of a construction adjudication body for the purposes
of this Act.
(2) The Council shall set the requirements for a person to qualify
for accreditation as a construction adjudication body.
(3) No person shall act as a construction adjudication body in proceedings
commenced under this Act except where the person is accredited by the
Council.
19. Application for construction adjudication body
(1) A person may apply to the Council to be accredited as a
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constructionadjudication body.
(2) On an application for accreditation the Council may—
(a) accredit the applicant as a construction adjudication body if the applicant
is suitable under section 20; and
(b) refuse to accredit the applicant as a construction adjudication body if
theapplicant is not suitable under section 20.
20. Construction adjudication body —suitability for accreditation
(1) In deciding whether an applicant is suitable for accreditation the
Council shall have regard to the following:
(a) whether the applicant, or a person engaged or employed by the
applicant, has been convicted, or found guilty, in the five years before
the applicationis made, whether in this Act or elsewhere, of an offence-
(i) involving fraud or dishonesty; or
(ii) punishable by imprisonment for at least one year;
(b) whether the applicant is bankrupt or insolvent;
(c) whether the applicant, or a person engaged or employed by the applicant,
atany time in the five years before the application is made, was involved
in the management of a corporation when—
(i) the corporation became the subject of a winding-up order; or
(ii) a liquidator or administrator was appointed;
(d) whether the applicant at any time in the one year before the application
is made had—
(i) an accreditation to be a construction adjudication body cancelled,
suspended or withdrawn under this Act or any other law; or
(ii) been refused accreditation to be a construction adjudication body
under thisAct or under any other law;
(e) if the applicant represents the interests of a particular section of the
building and construction industry—whether the applicant’s
representation makes the applicant unsuitable to appoint adjudicators.
(2) In this Section: any other law means a law that provides for regulation
of the building and construction industry.
21. Terms of accreditation
(1) An accreditation under this section is effective for four years starting on
thedate the Council gives the accreditation.
(2) An accredited Construction adjudication body may apply for renewal of
theaccreditation.
22. Suspension, cancellation or withdrawal of accreditation
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(1) The Council may suspend for up to 12 months, or cancel, a construction
adjudication body’s accreditation if the Council is satisfied on
reasonable grounds that—
(a) the construction adjudication body has contravened this Act; or
(b) the construction adjudication body is no longer suitable for
accreditation, having regard to the matters listed in Section 20.
(2) Where the construction adjudication body has contravened this Act,
before deciding to suspend or cancel a construction adjudication body
accreditation, the Council shall have regard to—
(a) the extent to which the construction adjudication body, or a person
engaged or employed by the construction adjudication body, is
responsible for the contravention; and
(b) the impact of the contravention on one or more of the following:
(i) the rights or entitlements of a person under this Act;
(ii) the integrity of the construction adjudication process under this Act;
(iii) any construction adjudication process undertaken by the construction
adjudication body.
(3) Where the Council is satisfied the construction adjudication body’s
accreditation should be suspended or cancelled, the Council shall, in
writing—
(a) inform the construction adjudication body that the Council intends to
suspend or cancel the accreditation; and
(b) give the construction adjudication body reasons for the suspension or
cancellation; and
(c) give the construction adjudication body at least 14 days after the notice
is given to the construction adjudication body to make representations to
the Council about the matter.
(4) The Council shall consider any representations made by the construction
adjudication body within the time set out in the notice before making a
decision to suspend or cancel the construction adjudication body’s
accreditation.
(5) The council may withdraw accreditation where the Council is satisfied
on reasonable grounds that information given to the Council by the
construction adjudication body in relation to the construction
adjudication body’s suitability for accreditation was false or misleading.
23. Costs and expenses— Construction adjudication body
(1) The Council may determine the maximum amount that a construction
adjudication body may charge for costs and expenses for any service
provided by the body in relation to an adjudication application.
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(2) A construction adjudication body may charge costs and expenses—
(a) Where the Council has made a determination under section 22(3) — up
to the maximum amount for any service provided by the construction
adjudication body in relation to an adjudication application; or
(b) Where the Council has not made a determination under section 22(3)—
up to a reasonable amount having regard to the work done and expenses
incurred by the Construction adjudication body
(3) The claimant and respondent are—
(a) each liable to pay any costs and expenses charged by a construction
adjudication body; and
(b) each liable to contribute to the payment of any such costs and expenses—
(i) in equal proportions; or
(ii) if the adjudicator decides a different proportion—the proportion decided.
24. Report— Construction Adjudication Body
(1) A construction adjudication body shall provide a report to the Council
onrequest.
(2) A report shall include the following—
(a) the activities of the construction adjudication body under the Act;
(b) costs and expenses charged by the construction adjudication body for
any service provided by the body in relation to an adjudication
application madeto the body; and
(c) any other information determined, in writing, by the Council.
25. Adjudicator’s fees and expenses
(1) An adjudicator is entitled to be paid for adjudicating an adjudication
application—
(a) when an amount of costs and expenses is agreed between the
adjudicator and the parties to the adjudication—the agreed amount; or
(b) when an amount of costs and expenses is not agreed—a reasonable
amount having regard to the work done and expenses incurred by the
adjudicator.
(2) An adjudicator who is required to travel outside their place of business
to conduct a site visit is entitled to reimbursement by the parties of
prescribed rates for applicable expenses or where there are no prescribed
rates, the expenses reasonably incurred.
(3) The claimant and respondent are jointly and severally liable to pay the
adjudicator’s costs and expenses.
(4) The claimant and respondent are jointly and severally liable make payment
of the adjudicator’s costs and expenses —
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(a) in equal proportions; or
(b) where the adjudicator decides a different proportion—the proportion so
decided.
(5) An adjudicator may withhold the delivery of an adjudication decision or
an adjudication certificate to the parties until full payment of the fees
and expenses of the adjudicator is received.
(6) Where the adjudicator has, under sub-section (5), withheld the delivery of
an adjudication decision or an adjudication certificate, a party to the
adjudication may, upon notice to the other party and to the adjudicator,
and after payment into the Council of the fees and expenses demanded
by the Adjudicator, apply to the Council for an order directing the manner
in which the fees and expenses properly payable to the adjudicator shall
be determined.
(7) The fees and expenses found to be properly payable pursuant to such an
order shall be paid out of the moneys paid into Council and the balance
of those moneys if any, shall be refunded to the applicant.
(8) The decision of the Council on an application under sub-section (6)
shall befinal and not subject to appeal.
(9) An adjudicator is not entitled to be paid costs or expenses in relation to
the adjudication of an adjudication application if the adjudicator fails to
makea decision on the application within the time allowed by section (7)
4.
(10) Sub-section 9 does not apply—
(a) where the failure to make a decision is because the application is
withdrawn or the dispute between the claimant and respondent is
resolved; or
(b) where an adjudicator exercises a lien under sub-section 5; or;
(c) in circumstances prescribed by or under law.
26. Protection from Liability for Adjudicators and
ConstructionAdjudication Body
(1) An adjudicator is not personally liable for anything done or omitted to
be done in good faith—
(a) in exercising a function under this Act; or
(b) in the reasonable belief that the act or omission was in the exercise of a
function under this Act.
(2) A construction adjudication body, and a person exercising a function
relating to the business affairs of a construction adjudication body under
this Act, are not personally liable for anything done or omitted to be
done in good faith—
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(b) in the reasonable belief that the act or omission was in the exercise of a
function under this Act.
27. Codes of practice
(1) The Council shall, having had regard to the matters specified in sub-
section 2 —
(a) prepare and publish a code or codes of practice to set standards for
adjudicators, or
(b) approve a code or codes of practice prepared by a construction
adjudication body.
(2) A code of practice referred to in this section may include provisions in
relation to any of the following:
(a) continuing professional development training requirements for construction
adjudicators;
(b) procedures to be followed by adjudicators in the conduct of a construction
adjudication;
(c) procedures to be followed by adjudicators in the conduct of a construction
adjudication requiring consultation, by a construction adjudicator, with an
expert witness;
(d) ethical standards to be observed by adjudicators during a construction
adjudication;
(e) confidentiality of a construction adjudication;
(f) procedures to be followed by a party for redress in the event of
dissatisfaction with the conduct of a construction adjudication;
(g) determination of the fees and costs of a construction adjudication; and
(h) any other matters relevant to the conduct of a construction adjudication.
(3) Before publishing or approving a code of practice under sub-section 1, the
Council shall—
(a) publish a notice in at least one daily newspaper with a national circulation
in Kenya—
i) indicating the proposal to publish or approve a code under the section;
ii) indicating that the proposed code is available for inspection on the website
for a period specified in the notice; and
iii) stating that submissions in relation to the proposed code may be made in
writing to the Council before a date specified in the notice, and
(b) have regard to any submissions received pursuant to paragraph (a) (iii).
(4) Where the Council prepares or approves a code of practice under this
section, a notice of the preparation or approval shall be published by notice
in the Gazette and the notice shall specify the date from which the code shall
come into operation.
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(5) Subject to sub-section (6), the Council may—
(a) amend or revoke a code of practice prepared or approved under this section,
or
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(b) withdraw approval in respect of any code of practice previously

approved under this section.
(6) The requirements of sub-sections 1 and 2 shall, with all necessary
modifications, apply to a code of practice that the Council intends to
amend or revoke or in relation to which the Council intends to withdraw
the approval.
(7) Where the Council amends or revokes, or withdraws approval in respect
of, a code of practice under this section, a notice to that effect shall be
published in the Gazette specifying —
(a) the code to which the amendment, revocation or withdrawal of approval,
asthe case may be, relates,
(b) whether the code is to be amended or revoked or whether approval in
relation to the code is to be withdrawn,
(c) if the code is to be amended, particulars of the amendment, and
(d) the date from which the amendment, revocation or withdrawal of
approval,as the case may be, commences.
28. Rules
(1) The Council shall have power to make regulations and issue forms to
provide for any matter referred to in this Act.
(2) Notwithstanding the generality of sub-section 1 the Council shall have
power to make regulations with respect to;
(a) for a definition of unprofessional conduct and for determining the mode
of inquiry into and the method of dealing with such conduct and the
penalties which may be imposed upon any accredited construction
adjudicators foundguilty of such conduct;
(b) for the guidelines or scales of fees to be charged by accredited
construction adjudicators for professional advice, services rendered, and
work done;
(c) for the fees to be paid for accreditation under this Act;
(d) for the conduct of trainings authorised or permitted under the provisions
of this Act and for the carrying into effect of any scheme or curriculum
for education construction adjudication formulated under the provisions
this Act;
(e) for prescribing the procedure to be followed by persons applying for
accreditation;
(f) for prescribing the conditions under which persons accredited under this
Act may practise as limited liability companies, and for requiring
professional indemnity insurance in the case of unlimited companies
and private firms;
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(g) for instructions and orders conducive to the maintenance and
improvementof the status of construction adjudicators in Kenya;
(h) individual and corporate membership, convening and other conduct for
the adjudication practice area committee.
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MISCELLANEOUS PROVISIONS
FIRST SCHEDULE
MODEL FORMS: (Section 28)
Form No……
IN THE MATTER OF A CONSTRUCTION ADJUDICATION

PURSUANT TO THE CONSTRUCTION ADJUDICATION ACT,
………
AND
PURSUANT TO
… .........................................................................................(name adopted
procedure)
Between
CLAIMANT
RESPONDENT
NOTICE OF INTENTION TO REFER TO A DISPUTE TO

ADJUDICATION
TO:
The Respondent
TAKE NOTICE that the Claimant intends, pursuant to the

Construction Adjudication Act, ……. (the “Act”) [and in accordance
with [ADJUDICATION PROCEDURE], to refer to Adjudication the
dispute of which particulars are set out in this Notice of Intention to
Refer a Dispute to Adjudication AS FOLLOWS: -
1.0 THE PARTIES:
1.1 The Claimant is a ............................. [FE/MALE ADULT/LIMITED
LIABILITY COMPANY etc.] [ NAME] and is a [ TYPE OF
BUSINESS].
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1.2 The Responding Party is a ................................... [FE/MALE
ADULT/LIMITED LIABILITY COMPANY etc.] [ NAME] and
is a [ TYPE OF BUSINESS].
2.0 THE CONTRACT:

2.1 The contract was made on [DATE] and is in the terms of
[IDENTIFY CONTRACT CONDITIONS
AND CONTRACTUAL DOCUMENTS] (the “Contract”).
ANNEXURENO……….
2.2 The Contract is a construction contract for the purposes of the Act.
2.3 The Referring Party is entitled to refer the dispute referred to
below to Adjudication in accordance with the Act.
2.4 The parties are engaged in a project for [DESCRIBE PROJECT].
2.5 The Referring Party’s role in the project is/was as [ IDENTIFY
REFERRING PARTY’S ROLE IN PROJECT].
2.6 The Responding Party is required under the Contract to [
IDENTIFY RESPONDING PARTY’S ROLE IN PROJECT].
3.0 THE DISPUTE:

3.1 A dispute has arisen between the Referring Party and the
Responding Party particulars of which are set out below.
3.2 Issues have arisen in respect of [ OUTLINE ISSUES FORMING
PART OF THE DISPUTE].
………………………………………………………………………
..
………………………………………………………………………
3.3 As a result, there is a dispute as to [ IDENTIFY THE EXACT
SCOPE OF THE DISPUTE (WHICH MAY NOT BE ALL THE
DISPUTED ISSUES BETWEEN THE PARTIES) AND ANY
CONTRACTUAL PROCEDURES WHICH ARE RELEVANT TO
THE FORMATION OF A DISPUTE].
3.4 The location where the dispute arose is [ IDENTIFY LOCATION].
4.0 THE REDRESS SOUGHT BY THE REFERRING PARTY

4.1 The Referring Party seeks redress of the following nature:
[IDENTIFY NATURE OF REDRESS SOUGHT e.g. payment of
the sum of Kes[ FIGURES] plus interest in respect of the loss
and damage incurred by the Referring Party as a result of the
breaches of contract referred to.]
4.2 The Referring Party seeks redress in the form of a decision of the
Adjudicator that [ IDENTIFY DETAILS OF REDRESS
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SOUGHT. FOR EXAMPLE]:
4.2.1 payment by the Responding Party by [ DATE] of Kes.[
FIGURES],or such other sum as the Adjudicator sees fit;
4.2.2 interest at such rate and in such amount as the Adjudicator
thinks fit;
4.2.3 any declaratory relief sought e.g. if a specified event is or is not
a relevant event, or a declaration that the Responding Party is in
breach of contract, or a declaration as to the meaning of a clause
inthe contract.
4.2.4 the Referring Party is awarded an extension of time to the Date
for Completion until [ DATE]; and
4.2.5 the Referring Party is awarded damages of [ AMOUNT], or
such other sum as the Adjudicator sees fit; and
4.2.6 the Adjudicator orders the Responding Party to pay the
Adjudicator’s fees and expenses] [and to reimburse to the
Referring Party the cost, to the Referring Party, of securing the
Adjudicator’sappointment].
5.0 CRYSTALLISATION OF THE DISPUTE:
5.1 The Referring Party issued a Payment Claim to the Responding
Party dated ……… [APPENDIX ….]
5.2 By letter dated [ DATE], the Referring Party wrote to the
Responding Party seeking [SET OUT PECUNIARY OR
DECLARATORY CLAIM].
5.3 By letter of response dated [DATE], the Responding Party
expressly rejected the Referring Party’s claim for the following
reasons:[DETAILS].
5.4 The Responding Party has since refused to engage with the
Referring Party on the question of [ DETAILS].
6.0 APPOINTMENT OF ADJUDICATOR:

6.1 The Referring Party will apply to the [NAME OF
NOMINATING BODY] for the appointment
of an Adjudicator OR [ADJUDICATOR NAMED IN
THE CONTRACT plus contact details] to act as the Adjudicator
in this dispute.
6.2 The named Adjudicator has been sent a copy of this notice and
they are requested to confirm in writing within …… days
whether or not s/he are willing and able to act.
6.3 In default of compliance with 6.2 above the Referring Party will
request [NOMINATING AUTHORITY] to appoint an
Adjudicator.
126
7.0 RELEVANT ADDRESSES:
7.1 The names and addresses of the parties [and the addresses which
the parties have specified for the giving of notices] to the
Contract are set out below:
127
7.1.1 Referring Party:
(1) Name: [ FULL COMPANY
Designation: DETAILS]
Email:
Telephone:
Mailing Address:
Physical Address:
(2) Name: [ REPRESENTATIVE’S
Email:
Telephone:
Mailing Address:
Physical Address:
7.1.2 Responding Party:

Name: [ FULL COMPANY
Email:
Telephone:
Mailing Address:
Physical Address:
Email:
Telephone:
Mailing Address:
Physical Address:
DATED at ……………… this ……… day of

……………………………. 20….
Signed:
REFERRING PARTY
128
Payment Claim:
This is a payment claim issued pursuant to the provisions of the Construction
Adjudication Act, 20…..
FROM:
Referring Party:
Email:
Telephone:
Mailing Address:
Physical Address:
Email:
Telephone:
Mailing Address:
Physical Address:
TO:
Responding Party:
Email:
Telephone:
Mailing Address:
Physical Address:
Email:
Telephone:
Mailing Address:
Physical Address:
1.0 CONTRACT DETAILS:
The contract was made on [DATE] and is in the terms of
AND CONTRACTUAL DOCUMENTS] (the
“Contract”).
2.0 PAYMENT CLAIM:
2.1 The total amount of this Payment Claim is Kes.
2.2 The construction work or related goods and services in respect of
which this Payment Claim is made and the method of calculation of the
total amount of the claim are set out in the Attachment(s) to this Payment
129
Claim.
DATED at ……………… this ……… day of …………………………….

20….
Signed:
REFERRING PARTY
Form No……
AND
PURSUANT TO
… .........................................................................................(name adopted
procedure)
Between
REFERRING PARTY
RESPONDING PARTY
ADJUDICATION APPLICATION
1.0 THE PARTIES:
1.1 The Referring Party ............................. is a [FE/MALE
ADULT/LIMITED LIABILITY COMPANY etc.] [NAME] and is a
[TYPE OF BUSINESS].
1.2 The Responding Party ............................ is a [FE/MALE
ADULT/LIMITED LIABILITY COMPANY etc.] [ NAME] and is a
[TYPE OF BUSINESS].
2.0 THE CLAIM:

2.1 [SUMMARIZE DISPUTE & CLAIM]
2.2 The Referring Party claims from the Responding Party the sum
of kes. [FIGURES], plus VAT for [BRIEF DETAILS OF
CLAIM], or such other amount as the Adjudicator shall decide.
2.3 These monies are due under the terms of the engagement of the
Referring Party as [ROLE] for [WORKS OR SERVICES], full
particulars of which are set out below.
130
2.4 The Referring Party also claims interest on the monies due
pursuant to [clause [NUMBER], of the Contract]
2.5 The Referring Party seeks a declaration from the Adjudicator
that [IDENTIFY NATURE OF DECLARATORY RELIEF
SOUGHT
e.g. if a specified event is or is not a relevant event.].
3.0 THE CONTRACT:

3.1 The contract was made on [DATE] and is in the terms of
AND CONTRACTUAL DOCUMENTS] (the “Contract”).
ANNEXURENO……….
3.2 The Contract is a construction contract for the purposes of the Act.
3.3 The Referring Party is entitled to refer the dispute referred to
below to Adjudication in accordance with the Act.
3.4 The parties are engaged in a project for [DESCRIBE PROJECT]

3.5 The Referring Party’s role in the project is/was as [IDENTIFY
REFERRING PARTY’S ROLE IN PROJECT].
3.6 The Responding Party is required under the Contract to
[IDENTIFY RESPONDING PARTY’S ROLE IN PROJECT].
3.7 The Referring Party relies on the whole of the terms of the
Contract for its true meaning intent and effect.
3.8 The following provisions are relevant to this dispute [INSERT
AND EXPLAIN RELEVANT CLAUSES].
3.9 In summary, the contractual position is as follows
[SUMMARISETHE CONTRACTUAL POSITION].
4.0 APPLICATIONS & RELEVANT NOTICES:

4.1 The Referring Party issued a Payment Claim dated .............which
the Responding Party failed, neglected and/or refused to settle
or [SET-OUT RELEVANT PAYMENT DETAILS, IN
FULL];
4.2 The Referring Party issued a Notice of Intention to Refer the
matter to Adjudication dated ....................... attached as
APPENDIX…..;
4.3 The Responding Party is yet to settle Kes ......................which
remains due and outstanding.
4.4 [SET OUT ANY OTHER NOTICES IN FULL INCLUDING
DELAY NOTICES ETC]
5.0 THE FACTS: [SET OUT THE FACTS]
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6.0 EXPERT EVIDENCE:
6.1 Experts were instructed on .......................... [date]
6.2 Expert Report(s) dated are attached as APPENDIX ….;
6.3 The Experts were instructed to produce their opinion on the
following—
6.4 The Experts opinion(s) can be summarised to be as follows:-
………………………………………………………………
……………………………………………………………...
7.0 WITNESS STATEMENTS:
7.1 The following witnesses have prepared Witness Statements:
(1) ………………………………………………………….
(2) ………………………………………………………….
7.2 The Witness Statements are attached as APPENDIX…….
8.0 THE CLAIM:

AND the Referring Party claims the following:
9.0 THE REDRESS SOUGHT BY THE REFERRING PARTY

9.1 The Referring Party seeks redress of the following nature:
[IDENTIFY NATURE OF REDRESS SOUGHT e.g. payment
of the sum of Kes.[FIGURES] plus interest in respect of the
loss anddamage incurred by the Referring Party as a result of
the breachesof contract referred to.]
9.2 The Referring Party seeks redress in the form of a decision of
theAdjudicator that [ IDENTIFY DETAILS OF REDRESS
SOUGHT]

20….
Signed:
REFERRING PARTY/AUTHORISED REPRESENTATIVE

………
AND
PURSUANT TO
… ........................................................................(name adopted procedure)
132
Between
REFERRING PARTY
RESPONDING PARTY
RESPONSE

20….
Signed:
RESPONDING PARTY/AUTHORISED REPRESENTATIVE
133

………
AND
PURSUANT TO .......................................... (name adopted procedure)
Between
REFERRING PARTY
RESPONDING PARTY
ADJUDICATOR’S DECISION
1.0 THE CONTRACT:
2.0 THE APPOINTMENT:
3.0 THE PROCEDURE AND DIRECTIONS:
4.0 THE DISPUTE:
5.0 THE EXPERTS, WITNESSES:
6.0 THE HEARING, PARTIES SUBMISSIONS ETC:
7.0 SUMMARY OF CLAIM & RELIEF/REDRESS SOUGHT:
8.0 DECISION:
(c) INTEREST & COSTS:
DATED at ……………… this ……… day of …………………. 20….
MADE and PUBLISHED by me ..................................... ADJUDICATOR.
Signed:
ADJUDICATOR
Form No……
………
AND
PURSUANT TO
… .........................................................................................(name adopted
procedure)
134
Between
REFERRING PARTY
RESPONDING PARTY
ADJUDICATION CERTIFICATE
THE CLAIM:
The Referring Party having referred the claim to Adjudication under the
Act pursuant to an Adjudication Application dated …… seeking the
following redress:
[REDRESS CLAIMED]
AND the Responding Party having responded per the Response dated
…… to the following effect:
[DEFENCE PRESENTED]
AND FURTHER having considered the Adjudication Claim, the

Response and the parties’ supporting documents and submissions
presented to the Adjudicator the Adjudication Decision dated ……. was
delivered to the parties on ………………….. AND IT IS HEREBY
ORDERED AS FOLLOWS:
(1) THAT the Adjudicated Amount due and payable herein is

KSh. ........................................;
(2) THAT the date the Adjudicated Amount became due and payable
was KSh. .................. ;
(3) THAT the Adjudicated Amount which remains due
and outstanding is KSh. …………….;
(4) THAT interest at the rate of ….. % is payable by the....................... ;
(5) THAT the amount of interest payable as at the date of this
Adjudication Certificate is............. ;
(6) THAT the amount of interest that continues to accrue daily is
……………………..;
(7) THAT costs are payable by the …… in the amount KSh.
............................ or are subject to be taxed by the taxing master;
(8) THAT pursuant to Section …. of the Construction Adjudication
Act, 20…. The Adjudication Decision is enforceable as a
135
judgment debtin the High Court of Kenya.

20….
MADE and PUBLISHED by me.................................... ADJUDICATOR.
Signed:
ADJUDICATOR
136
(iii) Draft Dispute Resolution Bill
DISPUTE RESOLUTION ACT

AN ACT of Parliament to make provision for the settlement of
disputes by alternative means of resolution including conciliation,
and mediation; to set out the guiding principles applicable; to
provide for the establishment, powers, and functions of the National
Dispute Resolution Council, and for connected purposes.
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Dispute Resolution Act, 2021.
2. Interpretation
In this Act, unless the context otherwise requires—
“Cabinet Secretary” means the Cabinet Secretary charged with the
responsibility for law and justice;
“Conciliation” means a voluntary process during which one or more
conciliators, facilitates communication between parties to a dispute with the
purpose of assisting the parties in finding a solution or in proposing to the
parties, based on the facts of conciliation and the progress of conciliation
proceedings, a solution to the dispute;
“Conciliator” means a neutral third party who listens to the arguments presented
by both opposing parties and renders a non-binding suggestion of how to resolve
the conflict” and includes—
(a) a neutral third party responsible for helping two opposing parties to
come to an agreement and
(b) an individual appointed to conciliate a dispute under this Act;
“Conciliation body” means a body or institution which is recognized under
section 74 of this Act to act as a conciliatory body;
“Mediation” means a confidential, facilitative and voluntary process in which
parties to a dispute, with the assistance of one or more mediators, attempt to
reach a mutually acceptable agreement to resolve the whole or part of the
dispute;
“Mediation process” means all the steps taken in an attempt to resolve a
dispute by mediation from the time a dispute is referred to Mediation or
a party sends an invitation to submit a dispute to mediation to the other
partyup to the time the mediation report is drawn up;
“Mediation session” means a meeting (including a meeting conducted
by electronic communication, video conferencing or other electronic
means) between the mediator, or one or more mediators (where more
than one mediator is appointed for a mediation), and one or more of the
parties to thedispute, and includes any activity undertaken (whether by a
137
mediator, a party to the dispute or some other person) —
(a) to arrange or prepare for such a meeting, whether or not the
meeting takes place;
(b) parties to voluntarily reach an agreement;
(c) to identify the issues in dispute;
(d) to explore and generate options;
(e) parties to communicate with one another; and
(f) to follow up on any matter or issue raised in such a meeting.
“Mediation agreement” means an agreement by 2 or more persons to
refer the whole or part of a dispute which has arisen, or which may arise,
betweenthem for mediation;
“Mediation body” means a body or institution established under section
32 of this Act;
“Mediator” means an impartial person accredited by or by a means
approved by the Council and registered to facilitate mediation process;
“Mediation Registrar” means a registrar appointed under section 59A of the
Civil Procedure Act. Cap. 21;
“The Council” means the National Dispute Resolution Council
established under Section 5 of this Act;
“The Centre” means the Nairobi Centre for International Arbitration
established under the Nairobi Centre for International Arbitration Act
No.26. of 2013;
3. The object of this Act is to—
(a) give effect to Article 159(2) (c) of the Constitution;
(b) provide an effective mechanism for settlement of

disputes through conciliation;
(c) provide an effective mechanism for settlement of
disputes through mediation;
(d) provide for the establishment, powers, and functions of
an oversight body to be known as the National Dispute
Resolution Council;
(e) to facilitate accessibility of alternative means of dispute
resolution including conciliation and mediation services
to all Kenyans;
(f) facilitate access to justice; and
(g) enhance individual involvement in dispute resolution.
4. The following principles shall apply to alternative dispute
resolution under this Act –
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(a) participation in alternative dispute resolution process is
voluntary;
(b) the parties to alternative dispute resolution process have
the right to resolve a dispute and be informed of this right
before alternative dispute resolution process commences;
(c) an alternative dispute resolution process is confidential
subject to the provisions of this Act;
(d) the parties and the practitioners shall seek to complete
the alternative dispute resolution process in the shortest
time practicable taking into account the nature of the
dispute;
(e) parties shall take reasonable measures in resolution of
disputes as provided for under this Act;
(f) a practitioner shall be impartial and disclose to the
parties’ circumstances which may affect the
practitioner’s impartiality;
(g) a practitioner shall facilitate disputes which the
practitioner is competent;
(h) a practitioner shall not provide legal advice to a party; and
apractitioner shall not use information acquired during
the alternative dispute resolution process for personal gain or to
the detriment of any person.
PART II
NATIONAL DISPUTE RESOLUTION COUNCIL
5. Establishment of the Council
(1) There is established a Council to be known as the
National Dispute Resolution Council which is an
unincorporated body.
(2) The Council shall consist of —
(a) a chairperson qualified to be appointed a judge of the
High Court, with an expertise in Alternative Dispute
Resolution appointed by the Cabinet Secretary;
(b) a representative of the Judiciary;
(c) a representative of the Attorney-General;
(d) a representative of the Nairobi Centre for
internationalarbitration;
(e) a representative of faith-based organizations;
(f) a representative of the private sector;
139
(g) a representative of an accredited consumer
organization;
(h) one member each nominated by the following bodies—
(i) Law Society of Kenya.
(ii) Chartered Institute of Arbitrators (Kenya) Branch.
(iii) Federation of Kenyan Employers.
(iv) Board of Registration for Architects and
Quantity Surveyors.
(v) Federation of Women Lawyers (FIDA – Kenya).
(vi) Central Organization of Trade Unions (COTU - K).
(vii) Kenya Bankers Association.
6. Functions of the Council
(1) The functions of the Council shall be—
(a) promote the public understanding of alternative
dispute resolution as an apparatus for dispute
resolution, and of alternative dispute resolution
terminologies scope and processes;
(b) promote further development of the legal and
institutional frameworks supporting the alternative
dispute resolution sector and its practice areas;
(c) increase harmony and efficiency in the sector by
enhancing and strengthening coordination,
collaboration and linkage within the sector, and
between the sector andthe formal justice system;
(d) enhance the quality, availability and accessibility of
alternative dispute resolution services by
strengthening sector governance and regulation;
(e) promote and engage in capacity building for the sector;
(f) strengthen different mechanisms and the practice of
alternative dispute resolution in all sectors of the
country;
(g) promote and inculcate the culture of alternative
dispute resolution in Kenya and to increase public
confidence and adoption of alternative dispute
resolution as the preferred mode of dispute resolution
in the country;
(h) strengthen the alternative dispute resolution sector
through research, knowledge development,
community of practice and leveraging of information
Communication technology;
140
(i) establish and provide oversight over the Practice
Area Committees and over all mechanisms for
alternative dispute resolution established by law
within other state agencies, except those established
under or within the Judiciary;
(j) perform such other functions as may be conferred on
it by this Act or any other written law.
7. Term of Office
(1) Other than the Chairperson, a member of the Council
other than ex-officio members shall, subject to the provisions of
this Act, hold office for a period of four years, on such terms and
conditions as may be specified in the instrument of appointment,
but shall be eligible for re-appointment for one further term.
(2) The members of the Council shall be appointed at
different times so that the respective expiry dates of the members’
terms of office shall fall at different times.
(3) The Chairperson shall hold office for the period of his
appointment as a member of the Council or for the term specified
in the instrument of appointment as such and shall be eligible for
reappointment for one further term.
8. Vacancy
The office of the chairperson or a member of the Council shall
becomevacant if the holder—
(a) dies;
(b) resigns from office, by a notice in writing addressed to
the Cabinet Secretary;
(c) is declared bankrupt or insolvent.
(d) is convicted of a felony and sentenced to imprisonment;
(e) is absent from three consecutive meetings of the Council
without good cause;
9. Filling of a vacancy
(1) Whenever a vacancy arises in the membership of the
Council, the Secretariat shall within fourteen days, notify the
Cabinet Secretary.
(2) Upon receipt of the notification, the Cabinet Secretary shall—
(a) request the respective nominating body to submit the
names of at least three nominees within twenty-one days
of the request; and
(b) appoint the nominee in compliance with the provisions of
this Act.
141
10. Conduct of business and affairs of the Council
(1) The conduct and regulation of the business and affairs of
the Council shall be as provided in the First Schedule.
(2) Except as provided in the First Schedule, the Council may

regulate its own procedure.
11. Funds of the Council
(1) The funds of the Council shall consist of—
(a) Such sums as may be granted to the Council by the

Cabinet Secretary for purposes of the Council pursuant
tosub-section (2);
(b) all monies from any other source provided for or
donated or lent to the Council including grants, gifts,
donations orother endowments given to the Council;
(c) such funds, fees, monies or assets as may vest in or
accrue to the Council in the performance of its
functions under this Act or under any other written
law.
(2) There shall be made to the Centre, out of the monies
provided by Parliament for that purpose, grants towards
the expenditure incurred by the Centre in the exercise of
its powers or the performance of its functions under this
Act orany other written law
(3) The receipts, earnings or accurals for the Fund and its
balances at the close of each financial year shall not be
paid into the Consolidated Fund, but retained for the
purposes ofthe Fund.
12. Establishment of the Fund

(1) There is established a fund of the Council to be known as
the General Fund.
(2) The Fund shall vest in the Council and shall
beadministered by the Council
(3) The Fund shall consist of
(a) all monies received as subventions, grants or donation
tothe Fund
(b) such sums as may be appropriated by Parliament for
thepurpose
(c) monies earned or arising from any investment of the Fund
(d) foreign aid and assistance from bilateral and
multilateral agencies
142
(e) all other sums which mat in any manner become
lawfullypayable to, received by or vested in the Centre,
relating to any matter incidental to its duties and
functions under thisAct.
(4) The Fund shall be used for meeting the capital and
current expenditure relating the function of the Council
under this Act or any other written law.
13. Remuneration of the Council

The Chairperson and members shall be paid such remuneration, fees
or allowances as may be determined by the Cabinet Secretary in
consultation with the Salaries and Remuneration Commission.
14. Committees of the Council

(1) The Council may establish such committees including
liaison committee for practice areas as it may deem
appropriate to perform such functions and responsibilities
asit may determine.
(2) The Council shall appoint the chairperson of a committee
established under sub-paragraph (1) from amongst its
members.
(3) The Council may where it deems appropriate, co-opt any
person to attend the deliberations of any of its
committees.
(4) All decisions by the committees appointed under sub-
paragraph (1) shall be ratified by the Council.
15. Disclosure of interest

(1) A member who has an interest in any contract, or other
matter present at a meeting shall at the meeting and as
soon as reasonably practicable after the commencement,
disclose the fact thereof and shall not take part in the
consideration or discussion of or vote on, any questions
with respect to the contract or other matter, or be counted
in the quorum of the meeting during consideration of the
matter.
(2) A disclosure of interest made under sub-section (1) shall
be recorded in the minutes of the meeting at which it is
made.
(3) A member of the Council who contravenes sub-section
(1) commits an offence and is liable to a fine not
exceeding two hundred thousand shillings.
143
16. Secretary to the Council
(1) The Registrar of the Nairobi Centre for International
Arbitration shall be the Secretary to the Council.
(2) The Secretary shall, in the performance of the functions
and duties of office, be responsible to the Council.
(3) The Secretary shall be responsible for—
(a) carrying out of the decisions of the Council;
(b) day-to-day administration and management of
theaffairs of the Council;
(c) the performance of such other duties as may
beassigned by the Council.
(4) The Centre shall provide the secretariat and
administrative services to the Council.
17. Protection from personal liability

Nothing done by a member of the Council or by any person
working under the instructions of the Council shall, if done in
good faith for the purpose of executing the powers, functions, or
duties of the Council under this Act, render such member or
officer personally liable for any action, claim or demand.
18. Practice Area Committees

(1) The Council shall establish committees to be known as
Practice Area Committees in fields of dispute resolution
that it determines to be necessary or as is required by this
Act orany other law, as independent member subscription
bodies.
(2) Notwithstanding the generality of sub-section (1), the
Council shall establish the following standing Practice
Area Committees—
(a) Arbitration Practice Committee;
(b) Construction Adjudication Practice Committee;
(c) Mediation Practice Committee;
(d) Conciliation Practice Committee.
(3) The Council shall in establishing the practice area
committees, have regard to the following;
(a) the maximum number of members necessary for
theefficient administration and management of
the functions of the committee;
(b) the professional expertise, competence and skills
required for the practice area;
144
(c) the composition is representative of the elements
of diversity in gender and age, and persons living
with disabilities;
(d) the individual members nominated to the
committeecomply with the requirements of
Chapter Six of the Constitution.
(4) The functions of the Practice Area Committees shall be—
(a) promote public awareness of the respective dispute
resolution practice and service;
(b) promote co-ordination and collaboration with other
practice areas and with the court system.
(c) promote policy and legislative development in
dispute resolution practice in order to create
alignment with the national dispute resolution policy,
and to strengthen the practice;
(d) promote knowledge development and the growth of a
community of practice of the dispute resolution area
of practice;
(e) support Council in its oversight functions;
(f) in accordance with this Act or the requirements of
any other law, to enhance the quality of dispute
resolution services, through the development and
enforcement of tools of regulation and governance
including codes of conduct; standard operating
procedures; remuneration schedules; training
curriculums and certification and accreditation
mechanisms; and Continuous Professional
Development (CPD) programs among other things;
(g) perform such other functions as may be conferred on
it by the Council, this Act or any other written law.
(5) The Practice Area Committee shall, not later than 30 June
in each year, make a report to the Council on the
performance of its functions under this Act and on its
activities during thepreceding year.
(6) The report referred to in sub-section 4 shall be in such
form and include information regarding such matters as
the Practice Area Committee considers appropriate or as
the Council may from time to time direct, including
such information as the Council may require relating
to— any matter concerning the policies and activities of
the Practice Area Committee, or any specific document
or account prepared by the Practice Area Committee.
145
(7) The Practice Area Committee may from time to time
make other reports to the Council on the performance of
its functions.
(8) The Council shall convene an annual forum for Practice
Area Committees as the focal point for exchange of
information regarding the dispute resolution practice.
19. Codes of practice

(1) The Council shall, in consultation with the practice area
committee —
(a) prepare and publish a code or codes of practice to set
standards for dispute resolution practice including
mediation, conciliation, and adjudication; or
(b) approve a code or codes of practice prepared by an
accredited body.
(2) A code of practice referred to in this section may include

provisions in relation to any of the following—
(a) continuing professional development training
requirements for dispute resolution practice including
mediation, conciliation and adjudication;
(b) procedures to be followed by for dispute resolution
practice including by mediators, conciliators and
adjudicators in the conduct of a for dispute resolution
process;
(c) procedures to be followed by an accredited dispute
resolution practitioner including a mediator,
conciliator, or adjudicator in a process requiring
consultation, by a mediator, conciliator, or
adjudicator, with a child;
(d) ethical standards to be observed by an accredited
dispute resolution practitioner including a mediator,
conciliator,or adjudicator during a process;
(e) confidentiality of an accredited dispute resolution
practitioner including a mediator, conciliator, or
adjudicator;
(f) procedures to be followed by a party for redress in
the event of dissatisfaction with the conduct of a
dispute resolution practitioner including a mediator,
conciliator,or adjudicator;
(g) determination of the fees and costs of a dispute
resolution process and a practitioner including a
mediator, conciliator, or adjudicator; and
146
(h) any other matters relevant to the conduct of dispute
resolution process including mediation, conciliation,
or adjudication.
(3) Before publishing or approving a code of practice under

sub-section 1, the Council shall—
(a) publish a notice in at least one daily newspaper with
a national circulation in Kenya—
(i) indicating the proposal to publish or approve
a code under the section;
(ii) indicating that the proposed code is available
for inspection on the website for a period
specified in the notice; and
(iii) stating that submissions in relation to the
proposed code may be made in writing to the
Council before a date specified in the notice;
and
(b) have regard to any submissions received pursuant to
paragraph (a) (iii).
(4) Where the Council prepares or approves a code of
practice under this section, a notice of the preparation or
approval shall be published by notice in the gazette and
the notice shall specify the date from which the code
shall come into operation.
(5) Subject to sub-section (6), the Council may—
(a) amend or revoke a code of practice prepared or
approved under this section; or
(b) withdraw approval in respect of any code of
practice previously approved under this section.
(6) The requirements of sub-sections (1) and (2) shall, with
all necessary modifications, apply to a code of practice
that the Council intends to amend or revoke or in relation
to which the Council intends to withdraw the approval.
(7) Where the Council amends or revokes, or withdraws
approval in respect of, a code of practice under this
section, a notice to that effect shall be published in the
Gazette specifying —
(a) the code to which the amendment, revocation, or
withdrawal of approval, as the case may be, relates;
(b) whether the code is to be amended or revoked or
whether approval in relation to the code is to be
withdrawn;
(c) if the code is to be amended, particulars of the
147
amendment; and
(d) the date from which the amendment, revocation, or
withdrawal of approval, as the case may be, commences.
20. Regulations
(1) In performance of its functions under this Act, the
Council shall have powers to develop rules and
procedures to be gazetted by the Cabinet Secretary.
(2) Notwithstanding sub-section 1 the Council shall have
powerto make regulations with respect to —
(i) for a definition of unprofessional conduct and for
determining the mode of inquiry into and the
method of dealing with such conduct and the
penalties which may be imposed upon any
accredited dispute resolution practitioner
including mediators, conciliators, adjudicators
found guilty of such conduct;
(ii) for the guidelines or scales of fees to be charged
by accredited dispute resolution practitioners'
mediators,conciliators, adjudicators for
professional advice, services rendered, and work
done;
(iii) for the fees to be paid for accreditation under this Act;
(iv) for the conduct of trainings authorized or
permitted underthe provisions of this Act and for
the carrying into effectof any scheme or
curriculum for education in dispute resolution
mediation, conciliation, adjudication formulated
under the provisions this Act;
(v) for prescribing the procedure to be followed by
persons applying for accreditation;
(vi) for prescribing the conditions under which
persons accredited under this Act may practise as
limited liabilitycompanies, and for requiring
professional indemnity insurance in the case of
unlimited companies and privatefirms;
(vii) for instructions and orders conducive to the
maintenance and improvement of the status of
dispute resolutionpractitioners including
mediators, conciliators, adjudicators in Kenya;
(viii) individual and corporate membership, convening
and other conduct for a practice area Committee.
PART 3A – MEDIATION
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21. Application
(1) This Part applies to, or in relation to, any mediation
conducted under a mediation agreement where —
(a) the mediation is conducted wholly or partly in Kenya; or
(b) the agreement provides that this Act or the law of Kenya
is to apply to the mediation.
(2) This Part shall not apply to —
(a) proceedings arising out of infringements under Chapter 4
ofthe Constitution of Kenya;
(b) disputes related to children matters where there is child
abuse, child neglect, defilement, domestic violence, or
related criminal or other illegal purposes;
(c) disputes falling within the Protection Against Domestic
Violence Act and Sexual Offences Act;
(d) any other circumstance prescribed in this Act or by or
under law.
(3) Nothing in this Part shall be construed as replacing a
mediation or other dispute resolution process provided for in
any other enactment or instrument.
(4) In prescribing, under paragraph (d) of sub-section (3), a
dispute or proceedings relating to a dispute for the purposes
of that section, the Act shall consider —
(a) the unsuitability of mediation as a means of resolving the
dispute or proceedings relating to a dispute;
(b) the availability and suitability of means, other than
mediation, of resolving the dispute or proceedings
relating to a dispute.
22. Mediation Agreement

(1) A mediation agreement may be in the form of a clause in a
contract or in the form of a separate agreement.
(2) A mediation agreement must be in writing.
(a) a mediation agreement is in writing if its content is
recorded in any form, whether or not the mediation
agreement has been concluded orally, by conduct or by
other means.
(b) a mediation agreement is in writing if its content is
recorded in any language, and may be subject to
translation as and when required.
(c) reference in a contract to any document containing a
mediation clause constitutes a mediation agreement in
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writing if the reference is such as to make that clause part
ofthe contract.
(d) a reference in a bill of lading to a charter party or any
other document containing a mediation clause constitutes
a mediation agreement in writing if the reference is such
as to make that clause part of the bill of lading.
(3) For the purposes of sub-section 2 the mediation agreement
should contain the following information —
(a) the manner in which the mediation is to be conducted;
(b) the manner in which the fees and costs of the
mediation will be paid;
(c) the place where the mediation is to be conducted;
(d) the fact that the mediation is to be conducted in a
confidential manner;
(e) subject to the mediator withdrawing from mediation
anytime with prior notice to the parties, the manner in
which the mediation may be terminated;
(f) such other terms (if any) as may be agreed between the
parties and the mediator.
23. Conduct of mediation

(1) The parties to a dispute may engage in mediation as a means
of attempting to resolve the dispute.
(2) Participation in mediation shall be voluntary at all times.
(3) The fact that proceedings have been issued in relation to the
dispute shall not prevent the parties engaging in mediation at
anytime prior to the resolution of the dispute.
(4) A party may—
(a) withdraw from the mediation at any time during the
mediation;
(b) be accompanied to the mediation, and assisted by, a
person(including a legal advisor) who is not a party; or
(c) obtain independent legal or other advice at any time
during the mediation.
(5) Subject to sub-section (4) (a), the mediator and the parties
shall, having regard to the nature of the dispute, make every
reasonable effort to conclude the mediation in an expeditious
manner whichis likely to minimize costs.
(6) It is for the parties to determine the outcome of the mediation.
(7) The fees and costs of the mediation shall not be contingent on
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its outcome.
24. Role of a mediator

(1) The mediator shall, prior to the commencement of the
mediation, make such enquiry as is reasonable in the
circumstances to determine whether he or she may have any
actual or potential conflict of interest, and not act as mediator
in that mediation if, following such enquiry, he or she
determines that such conflict exists.
(2) The mediator shall—
(a) during the course of the mediation, declare to the parties
any actual or potential conflict of interest of which he or
she becomes aware or ought reasonably to be aware as
such conflict arises and, having so declared, shall, unless
the parties agree to him or her continuing to act as the
mediator,cease to act as the mediator;
(b) act with impartiality and integrity and treat the parties fairly;
(c) complete the mediation as expeditiously as is practicable
having regard to the nature of the dispute and the need
for the parties to have sufficient time to consider the
issues; and
(d) ensure that the parties are aware of their rights to each
obtain independent advice (including legal advice) prior
to signing any mediation settlement.
(3) Subject to sub-section 4, the outcome of the mediation shall
be determined by the mutual agreement of the parties and the
mediator shall not make proposals to the parties to resolve
the dispute.
(4) The mediator may, at the request of all the parties, make
proposals to resolve the dispute, but it shall be for the parties
to determine whether to accept such proposals.
25. Withdrawal of the Mediator
(1) Unless otherwise agreed by the parties, a mediator who
withdraws from his office may, if prior notice has been given
to the parties, apply to the High Court—
(a) to grant him relief from any liability thereby incurred by
him; and
(b) to make such order as the court thinks fit with respect to
his entitlement (if any) to fees or expenses or the
repayment of any fees or expenses already paid.
(2) Where the High Court is satisfied that, in the circumstances,
it was reasonable for the mediator to withdraw, it may grant
relief on such terms as it may think fit.
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(3) The decision of the High Court shall be final and shall not be
subject to appeal.
26. Confidentiality
Subject to section 27, no person shall disclose any matter
relating to the mediation process to a third party.
27. Disclosure
(1) A person may disclose any matter relating to the mediation
process to a third party where —
(a) the disclosure is made with the consent of —
(i) all the parties to the mediation; and
(ii) for a mediation communication that is made by a
person other than a party to the mediation, the
makerof the mediation communication;
(b) the content of the mediation communication is
information that has already been made available to the
public at the time of its disclosure, other than
information that is only in the public domain due to an
unlawful disclosure;
(c) there are reasonable grounds to believe that the
disclosureis necessary to prevent or minimize —
(i) the imminent threat to the life, health, or
property of a person; or
(ii) the abuse, neglect, abandonment or exploitation
ofany child or other person;
(d) the disclosure is made for research, evaluation or
educational purposes without revealing, or being likely
to reveal, whether directly or indirectly, the identity of
the maker of the mediation communication or any
person to whom the mediation communication relates;
(e) the disclosure is required by or under any law or by an
order of court;
(f) the mediation communication relates to the commission
of any offence under any law or was made in
furtherance of any illegal purpose.
(2) Despite sub-section (1), a person may, with leave of a court or
an arbitral tribunal disclose a mediation communication to a
third party to the mediation —
(a) for the purpose of enforcing or disputing a mediated
settlement agreement;
(b) for the purpose of establishing or disputing an
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allegation or a complaint of professional misconduct
against a mediator or any other person who participated
in the mediation in a professional capacity;
(c) for the purpose of discovery or other similar procedures
in any court proceedings or arbitral proceedings (as the
case may be) which have been instituted, where the
person whois a party to those proceedings is required to
disclose documents in the person’s possession, custody
or power; or
(d) for any other purpose that the court or arbitral tribunal
(as the case may be) considers justifiable in the
circumstances of the case.
(3) A mediation communication is not to be admitted in evidence
in any court, arbitral or disciplinary proceedings except with
the leave of a court or an arbitral tribunal under sub-section
5.
(4) A court or an arbitral tribunal may, on application by any
person, grant leave for a mediation communication to be
disclosed under sub-section 5 or admitted in evidence under
sub-section 2.
(5) For the purposes of sub-section 4, the court or arbitral tribunal
(as the case may be) shall take into account all of the
following matters in deciding whether to grant leave—
(a) whether the mediation communication may be or has
been disclosed under sub-section 2;
(b) whether it is in the public interest or the interests of the
administration of justice for the mediation communication
tobe disclosed or admitted in evidence;
(c) any other circumstances or matters that the court or
arbitral tribunal (as the case may be) considers relevant.
(6) Where the mediation communication is sought to be
disclosed or admitted in evidence in proceedings —
(a) before a court, the application shall be made to the court
before which the proceedings are heard;
(b) before an arbitral tribunal, the application shall be made

to the arbitral tribunal before which the proceedings are
heard;and
(c) in any other case, the application shall be made to the
High Court.
(7) In this section “disclosure”, in relation to information, includes
permitting access to the information.
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28. Stay of proceedings
(1) Where any party to a mediation agreement institutes any
proceedings before a court against any other party to that
agreement in respect of any matter which is the subject of
that agreement, any party to that agreement may apply to that
court to stay the proceedings so far as the proceedings relate
to that matter.
(2) The court hearing the application may make an order, upon
such terms or conditions as the court thinks fit, staying the
proceedings so far as the proceedings relate to the matter.
(3) The court may, in making an order under sub-section 2,
make such interim or supplementary orders as the court
thinks fit for the purpose of preserving the rights of the
parties.
(4) For the purposes of this part, a reference to a party includes a
reference to any person claiming through or under such
party.
29. Performance of a mediated settlement agreement

(1) The settlement agreement shall be performed within 30 days
from the date when copies of the agreement were transmitted
to the parties unless a different time period is stipulated in the
agreement.
(2) Where a settlement agreement is not performed within the
time period referred to in sub-section 1, any of its parties is
entitled to apply to the High Court to adopt the agreement as
an order of the court.
(3) Any party to the agreement may, with the consent of all the
other parties to that agreement, apply to a court to record the
mediation settlement agreement as an order of court.
(4) A settlement agreement that is adopted under this section as
a decree of the court may be enforced in the same manner as
a judgment given or an order of the court.
(5) The court may refuse to adopt a mediated settlement
agreementas a decree of court if —
(a) the agreement is void or voidable because of
incapacity, fraud, misrepresentation, duress, coercion,
mistake or any other ground for invalidating a
contract;
(b) the subject matter of the agreement is not capable of
settlement;
(c) any term of the agreement is not capable of
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enforcementas a decree of court;
(d) where the subject matter of the dispute to which the
agreement relates involves the welfare or custody of a
child, one or more of the terms of the agreement is not
in the best interest of the child; or
(e) the adoption of the agreement as a decree of court is
contrary to public policy.
30. Authentication of a settlement agreement

(1) A settlement agreement shall be in writing and signed by all
the parties in the presence of the mediator.
(2) The mediator shall explain to the parties the legal significance
of authentication of the settlement agreement.
(3) The settlement agreement shall be authenticated by the
mediator by affixing their signature on the agreement.
(4) The settlement agreement shall state the date when it is made.
(5) Subject to section 29, a signed copy of the settlement
agreement shall be delivered to each party.
(6) The authenticated settlement agreement shall be binding on
the parties
31. Foreign Mediated Settlement Agreement

An international mediated settlement agreement to which this
Act applies may be adopted as an order of court and subject to
section 29 be enforced in the same manner as a judgment of the
court.
32. Mediation Body

(1) The Council may, subject to such terms and conditions as
the Council thinks fit to impose —
a) designate a body or institution to be a
designated mediation body for the purposes of
this Act; and
b) designate any accreditation or certification scheme
administered by a designated mediation body to be
an approved accreditation or certification scheme
for the purposes of this Act.
(2) Notice of every designation shall be published in the Gazette.
PART 3B - COURT ANNEXED MEDIATION
33. Referral to Mediation
(1) This Part shall apply where a suit is filed in Court.
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(2) Subject to the provisions of this Act or any other law on the
suitability of mediation as a means of resolving the dispute
or proceedings relating to a dispute, the court-
(a) in all suits, shall within 21 days after close of
pleadings convene a scheduling conference with the
parties and or their counsels for directions; and
(b) may in suitable cases conduct the mediation unless
there is an objection from any party or refer the suit
to the Mediation Registrar.
(3) Where court-initiated mediation fails, the Court shall
forthwith refer the suit to the registry for hearing by another
court.
(4) Where a suit is referred to the Mediation Registrar under
sub-section 2, the Mediation Registrar shall convene the first
scheduling conference within thirty days for the purpose of
referring the suit to Mediation.
(5) The Mediation Registrar shall give a notice to the parties
indicating the date and time for the first scheduling
conference and requiring the parties and or their
representatives to attend.
(6) The parties to a suit shall be required to attend the scheduling
conference as directed in the notice given under sub-section 5
by the Mediation Registrar.
34. Appointment and List of Mediators

(1) The Mediation Registrar shall maintain and make available to
all parties to whom this section applies and the public, a list
of persons qualified to serve as Mediators.
(2) During or after the scheduling conference, the Mediation
Registrar shall appoint a Mediator who will conduct the
Mediation and who will be—
(a) a person chosen by agreement of the parties from the list; or
(b) a person assigned by the Mediation Registrar from the list;
or
(c) a person who is not named on the list if the parties’ consent
to his appointment.
(3) Every person appointed as Mediator under sub-section 2
shall comply with the provisions of this section and with the
code of ethics in the Third Schedule of this Act.
(4) The list referred to in sub-section 1 shall be the list compiled
by the Committee appointed under section 59B of the Civil
Procedure Act and shall be approved by the Rules
Committee from time to time.
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35. Mediator’s Fee
(1) The Chief Justice may with the recommendation of the Rules
Committee prescribe and regulate the remuneration of
Mediators under this Part.
(2) Each party shall pay an equal share of the Mediator’s fees for
the mandatory session at least seven days before the session
provided that if none of the parties has paid the Mediator’s
fees, the Mediator shall cancel the Mediation and
immediately file with the Mediation Registrar a certificate of
non-compliance.
(3) The Mediator’s fees for the mandatory session shall cover up
tothree hours of Mediation.
(4) After the first three hours of Mediation, the Mediation may
be continued if the parties and the Mediator agree to do so
and if the parties agree in advance to pay the Mediator an
agreed hourly rate.
(5) Where a Mediator cancels a session under sub-section 2
because a party fails to make payment of the share for
Mediator’s fee that party shall pay such cancellation fees as
may be set from time to time by the Accreditation Committee.
(6) Where a Mediator cancels a session under sub-section 2
because a party fails to attend within the thirty minutes of the
session, the party who fails to attend shall pay such
cancellation fees as may be set from time to time by the
Accreditation Committee.
(7) Where all the parties fail to comply or attend, as the case
may be, they shall pay the cancellation fees in equal shares.
(8) A party’s failure to pay a share referred to in sub-section 2 or
3 shall not affect the liability of the other party or parties.
(9) A party who has instituted a suit as a pauper with respect to
the proceedings is not required to pay fees under this section.
36. Time for Mediation

(1) A Mediation shall take place within three (3) months from
the date of the referral order under section 33.
(2) The time given in sub-section (1) may be extended by the
Court for further two (2) months having regard to the number
of parties or the complexity of issues or with the consent of
the parties which consent shall be filed in Court.
37. Mandatory session

Upon a referral order being made the Mediator shall within
14 days convene a mandatory session.
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38. Mediation Session
(1) The Mediator shall, immediately after the mandatory session,
fix a date for the Mediation and shall, at least fourteen (14)
days before the date, serve on every party a notice in the
prescribe form stating the place, time and date of the
Mediation session and that their attendance shall be
mandatory.
(2) The Mediator shall file a copy of the notice in Court.
39. Procedure before Mediation
(1) Every party shall at least seven (7) days before the Mediation
comply with the following conditions—
(a) prepare a statement in the prescribed form and provide a
copy of the same to every other party and the Mediator;
(b) the statement in sub-section 1(a) shall identify the factual
andlegal issues in dispute and briefly set out the position
and interest of the party making the statement; and
(c) attach to the statement in sub-section 1(a) documents in
support of the statement.
(2) Where it is not possible to conduct a Mediation session because
a party fails to comply with sub-section (1), the Mediator
shall—
(a) unless he is satisfied that such non-compliance is for
good reason, cancel the session and immediately file
with the Mediation Registrar a certificate of non-
compliance;
(b) where the Mediator is satisfied that such non-compliance
is for good reason, he shall reschedule another session
consistent with the provisions of section 35 (4).
40. Attendance at Mediation

(1) The parties and their legal or other representatives, where the
parties are represented, shall attend the Mediation unless the
Mediator orders otherwise.
(2) Where the party is a company, corporation, partnership,
government agency or entity other than an individual, an
officer or director of sufficient rank with authority from such
entity to settle the suit or matter, shall attend.
(3) Where it is not possible to conduct a scheduled Mediation
because a party fails to attend within the first thirty minutes
of the time appointed for commencement of the Mediation,
the Mediator shall cancel the Mediation and immediately file
with the Mediation Registrar a certificate of non-compliance.
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41. Role of Mediator
(1) At the commencement of Mediation, the Mediator shall
explain to the parties the statement of understanding on the
role of the Mediator in the prescribed form and shall require the
parties to sign the Form.
(2) Provided that where either or both of the parties fail to sign
the Form, such failure shall not preclude the Mediator from
proceeding with the Mediation.
42. Non-Compliance
(1) Where a certificate of non-compliance is filed, the Mediation
Registrar shall within 14 days summon the parties by notice
specifying the time and place at which they are required to
attend before the Mediation Registrar for further directions in
the suit.
(2) Upon attendance by the parties the Mediation Registrar may
make any of the following orders—
(a) an order that further mediation shall take place on such
terms as the Court shall consider appropriate; or
(b) an order that the suit shall proceed to trial; or
(c) such orders as to costs as is appropriate in the
circumstances; or
(d) such other order as is appropriate in the circumstances.
43. Confidentiality and without prejudice

All communication in the course of a Mediation, the Mediator’s
notes and records shall be confidential and shall be deemed to be
without prejudice.
44. Mediator’s Report

Within ten (10) days after the Mediation is concluded, the
Mediator shall give the Mediation Registrar and parties a report
on the Mediation in the prescribed form.
45. Agreement
(1) Where there is an agreement resolving some or all of the
issues in dispute, it shall be reduced into writing and signed
by the parties and shall be filed in Court by the Mediator
within ten (10) days after the Mediation is concluded.
(2) Where the agreement settles the suit, the Mediator shall file
in Court a notice to that effect and the Court shall register the
agreement and enter judgement in terms of the agreement.
(3) The judgment entered under sub-section 2 will be enforced in
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the same manner as a judgment of the court.
(4) Where no agreement is reached the suit shall be set down for
hearing.
46. Consent Order for additional Mediation

(1) With the consent of the parties the Court may at any stage in
the suit, make an order requiring the parties to participate in
further Mediation.
(2) The Court may include any necessary directions in the Order.
47. No appeal against judgement on settlement

No appeal shall lie against a judgment entered under section 45(2).
48. Admissibility in Court Proceedings

(1) Anything said during a Mediation session shall be
inadmissible in any legal proceedings as evidence.
(2) Neither the Mediator nor any person present at the Mediation
may be summoned, compelled, or otherwise required to
testify or to produce records or notes relating to the
Mediation in any proceedings before any court of law.
(3) A Mediation shall not be taped nor any transcripts of it be made;
(4) Any record of what took place at Mediation shall not be
admissible before any court of law, unless the parties agree
in writing.
(5) The provisions of this section do not apply to—
(a) a mediated agreement; or
(b) prevent the admission of factual evidence relating to the
cause of action that would be admissible notwithstanding
sub-section (1) and (2).
49. All applications under section 59D of the Civil Procedure Act
All applications under section 59 D of the Civil Procedure Act shall
be filed and served on the other party within 7 days of the filing.
50. Opposition to the Agreement

Where there is no opposition to the agreement within seven (7) days
of service, the agreement shall be registered as a judgement of the
Court.
51. Application for opposition
Where the application is opposed, it shall be heard and
determined within 21 days.
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52. Mediators Report
(1) Following a direction by the court under section 33 (2) the
parties to the proceedings concerned engage in mediation
and subsequently apply to the court to re-enter the
proceedings, the mediator shall prepare and submit to the
court a written report which shall set out—
(a) where the mediation did not take place, a statement of
the reasons as to why it did not take place; or
(b) where the mediation took place—
(i) a statement as to whether or not a mediation
settlement has been reached between the parties in
respect of the dispute the subject of the
proceedings; and
(ii)if a mediation settlement has been reached on all, or
some only of the matters concerning that dispute, a
statement of the terms of the mediation settlement.
(2) Except where otherwise agreed or directed by the court, a

copy of a report prepared under this section shall be given to
the parties at least 7 days prior to its submission to the court.
PART IV – CONCILIATION
53. Application
(1) This Part applies to, or in relation to, any conciliation
conducted under a conciliation agreement where —
(a) the conciliation is wholly or partly conducted in
Kenya;or
(b) the agreement provides that this Act or the law of
Kenya is to apply to the conciliation.
(2) This Part shall not apply to—
(a) proceedings in respect of alleged infringements of the
Bill of Rights Chapter Four of the Constitution of
Kenya;
(b) any other circumstance prescribed in this Act or
under any other law.
(3) Nothing in this Part shall be construed as replacing a
conciliation or other dispute resolution process provided for
inany—
(a) other law or instrument made under any other law; or
(b) contract or agreement.
(4) In prescribing, under paragraph (b) of sub-section 2, a
dispute or proceedings relating to a dispute for the purposes
161
of that sub-section, the Council shall consider—
(a) the unsuitability of conciliation as a means of
resolving the dispute or proceedings relating to a
dispute;
(b) the availability and suitability of means, other than
conciliation, of resolving the dispute or proceedings
relating to a dispute; and
(c) the rights (if any) of the parties to the dispute or
proceedings relating to a dispute to engage in
proceedings before a court to resolve the dispute or
proceedings relating to a dispute.
54. Confidentiality
(1) Conciliation proceedings shall be confidential unless
otherwise ordered by Court or required by law or with the
consent of the parties.
(2) The conciliator has a duty of confidentiality in respect of the
facts of the conciliation proceedings which he or she has
become privy to in the course of the proceedings or outside
theproceedings.
(3) The conciliator provides information regarding the facts of
the conciliation proceedings only to the parties to the
proceedings and their representatives.
(4) A conciliator who is heard as a witness may not be asked
questions about or required to explain the facts of the
conciliation proceedings which the conciliator has become
privy to in the course of those proceedings.
(5) Unless otherwise provided by law, the duty of confidentiality
in respect of the facts of conciliation proceedings also
extends to third parties who have in their possession
documents containing information described in sub-sections
2 to 4 of this section or who have access to such documents.
(6) Despite sub-sections 1 to 5 the duty of confidentiality may
be vacated where—
(a) a court before which a criminal, civil or administrative
proceeding is heard orders a conciliator to provide
information regarding the facts of conciliation
proceedings for the reason that disclosing the information
either—
(i) is justified by a substantial public interest; or
(ii) is required for the protection of a child’s
interests; or
(iii) concerns a threat to a person’s health or life;
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(iv) is required by an investigative body for
purposes of an investigation authorized by law;
(b) a court relieves the conciliator from the duty of
confidentiality—
(i) when a party is dies without successors;
(ii) when it is shown to be impossible to establish
communication with the party;
(c) a party to conciliation proceedings or their successor or
representative relieves the conciliator from the duty of
confidentiality in respect of an act by providing a
corresponding written consent.
55. Independence
(1) A conciliator shall be independent and impartial towards
parties to conciliation proceedings.
(2) When a conciliator commences conciliation proceedings, he
or she shall explain to the parties the nature and legal
consequences of the conciliation proceedings and the
conciliator’s remuneration arrangements.
(3) A conciliator may not direct conciliation in a manner that
gives the parties the impression that the conciliator has power
to make binding decisions in respect of the parties’ dispute.
(4) The conciliator shall not act as an arbitrator or as a
representative or counsel of a party in any arbitral or judicial
proceeding in respect of a dispute that is the subject of the
conciliation proceedings
(5) The conciliator shall not be presented by the parties as a
witness in any arbitral or judicial proceedings.
(6) In addition to requirements set out in sub-sections 1 and 2 of
this section, a professional appointed to perform the duties of
conciliator shall also observe the independence and
impartiality requirements established by law or code of
conduct which governs the profession.
56. Invitation to conciliation

(1) Any party to a dispute to which this Act applies may
initiate conciliation.
(2) The party initiating conciliation shall send to the other party
a written invitation to conciliate under this Part, briefly
identifying the subject of the dispute.
(3) The conciliation proceedings shall commence when the other
party accepts in writing the invitation to conciliate.
(4) Where the other party rejects the invitation, there will be no
163
conciliation proceedings.
(5) Where the party initiating conciliation does not receive a
reply within fourteen days from the date of receipt of the
invitation, or within such lesser period as specified in the
invitation, he may elect to treat that as a rejection of the
invitation to conciliate; and if he so elects, he shall inform in
writing the other party accordingly.
(6) Where a court has directed the parties to a dispute to refer
their dispute to a conciliator, the conciliator may, at the
request of a party, establish the preparedness of the other
party to participate in conciliation proceedings.
57. Conciliator panel

(1) There shall be one conciliator unless the parties agree
that there shall be more than one conciliator.
(2) Where there is more than one conciliator, the conciliators
shall, as a general rule, act jointly.
58. Appointment of conciliator by parties

(1) Subject to sub-section 2—
(a) in conciliation proceedings with one conciliator, the
parties may agree on the name of a sole conciliator;
(b) in conciliation proceedings with two conciliators,
eachparty may appoint one conciliator; and
(c) in conciliation proceedings with three conciliators,
each party may appoint one conciliator, and the
two conciliators shall appoint the third conciliator who
shall act as the presiding conciliator.
(2) Parties may request for a conciliation body to appoint a
suitable person as a conciliator.
(3) Any person appointed by the parties, or by a conciliation
body to act as a conciliator or presiding conciliator must
before acceptance of the appointment disclose any conflict
of interest.
59. Conciliation Meetings

(1) The conciliator may invite the parties to attend a
conciliation meeting or communicate with them orally or in
writing.
(2) The conciliator may meet or communicate with the parties
together or with each of them separately.
(3) Unless the parties have agreed upon the place where
meetings with the conciliator are to be held, that place shall
164
be determined by the conciliator, after consultation with
the parties, having regard to the circumstances of the
60. Disclosure of Communication

When the conciliator receives information concerning the dispute
from a party, the Conciliator shall disclose the substance of that
information to the other party in order that the other party may have
the opportunity to present any explanation which the Conciliator
considers appropriate; except that when a party gives any information
to the conciliator subject to a specific condition that it be kept
confidential, the conciliator shall not disclose that information to the
other party.
61. Settlement agreement
(1) When it appears to the conciliator that there exist elements of
a settlement which may be acceptable to the parties—
(a) the conciliator shall formulate the terms of a possible
settlement and submit them to the parties for their
observations;
(b) After receiving the observations of the parties, the
conciliator may reformulate the terms of a possible
settlement in the light of such observations.
(2) If the parties reach agreement on a settlement of the dispute,
they may draw up and sign a written settlement agreement.
(3) If requested by the parties, the conciliator may draw up, or
assist the parties in drawing up, the settlement agreement.
(4) When the parties sign the settlement agreement, it shall be final
and binding on them.
(5) The conciliator shall authenticate the settlement agreement by
affixing their signature on the agreement and furnish an
authenticated copy to each of the parties to the conciliation
proceedings.
62. Costs and fees

(1) Subject to sub-section 5 the parties to conciliation
proceedings shall pay to the conciliator the agreed
conciliator’s fee for conducting the proceedings and to
cover the related costs.
(2) The conciliator may require the parties to make an advance
payment on the conciliation fee.
(3) The parties to conciliation proceedings are jointly and
severally liable for payment of the agreed-upon fee to the
conciliator.
165
(4) Unless otherwise agreed by the parties each party shall
bear their own costs of the conciliation.
(5) Where conciliation proceedings are conducted by an order
of Court or under rules of a conciliation body, any
subsequent distribution of costs between the parties to such
proceedings is determined by the Court or Rules,
respectively.
63. Advance deposit
(1) The conciliator may direct each party to deposit an equal
amount as an advance for the costs referred to in section
62(2)which he expects will be incurred.
(2) Where the required deposits under sub-section 1 are not
paid in full by both parties within fourteen days, the
conciliator may suspend the proceedings or may make a
written declaration of termination of the proceedings to the
parties, to take effect on the date specified in the
declaration.
(3) Upon termination of the conciliation proceedings, the
conciliator shall render an account to the parties of the
deposits received and shall return any balance to the
parties.
64. Non-admissibility of conciliation proceedings

(1) The parties shall not rely on or introduce as evidence in
arbitration or judicial proceedings, whether or not such
proceedings relate to the dispute that is the subject of the
conciliation proceedings—
(a) views expressed or suggestions made by the otherparty in
respect of a possible settlement of the dispute;
(b) admissions made by the other party in the course of the
conciliation proceedings;
(c) proposals made by the conciliator;
(d) the fact that the other party had indicated his or her
willingness to accept a proposal for settlement
made by the conciliator.
65. Experts and witnesses

(1) Subject to sub-section 2 at the request of a party and
provided that the conciliator deems it necessary, an expert
may be asked to provide an opinion to clarify the facts of
the dispute.
(2) The conciliator may hear the other party on the request for
expert opinion.
166
(3) Experts and witnesses may be asked to participate and may
be heard in a conciliation meeting pursuant to the
procedure specified in sub-section 1.
(4) Any expert and witness costs shall be paid by the parties in
advance.
(5) Unless agreed otherwise, the costs are paid by the party at
whose request the expert or witness is called to participate
in the proceedings.
66. Termination of conciliation

(1) Conciliation proceedings are deemed to have terminated
when—
(a) the parties sign the settlement agreement;
(b) the parties to the proceedings settle their dispute in
the course of the proceedings;
(c) a party to the proceedings expresses its intention in
writing to discontinue the proceedings; or
(d) the conciliator discontinues the proceedings in the
casesspecified in sub-section 2 of this section.
(2) The conciliator may discontinue the conciliation proceedings—
(a) when the likelihood of the parties reaching an
agreementis no longer justified; or
(b) all things considered, and taking into account the
interests of the parties, the conciliator cannot be
expectedto continue the proceedings; or
(c) when the case is essentially unsuitable for
CONCILIATION PROCEEDINGS
67. Application to conciliation body
(1) A person may make an application in writing for conciliation
to a conciliation body.
(2) The application shall state—
(a) the name, address and other contact information of the
applicant;
(b) the name, address and other contact information of the
other party;
(c) the facts of the dispute;
(d) the applicant’s request and the facts upon which the
applicant found his or her request.
167
(3) Documentary evidence may be annexed to the application,
including documents recording the course of any
negotiations conducted so far with the other party, such as
the other party’s reply to the applicant’s request.
(4) In the application, the applicant may put forward his own
settlement proposal.
(5) If the applicant acts through a representative, the
representative’s authority to represent shall be annexed to
the application.
68. Dismissing an application

(1) A conciliation body will dismiss an application if—
(a) the conciliation body is not competent to deal with the
dispute; or
(b) a final ruling has been made by a court in the dispute.
(2) The applicant shall be immediately informed of the dismissal

of the application and of the grounds of the dismissal.
(3) Where an application does not include all required
information, the conciliation body shall give the applicant a
7- day period by which he is required to provide the missing
information.
(4) Where the applicant fails to provide the missing information
by the time period, the conciliation body may dismiss the
application, informing the applicant thereof.
69. Commencing conciliation proceedings
(1) The conciliation body shall within 7 days of receipt transmit a
copy of the applicant’s application to the respondent who shall
provide a written reply within 7 days of the date of receipt.
(2) In the cases and pursuant to the procedure provided by law a
conciliation body may order a party to participate in the
proceedings.
(3) The conciliation body shall explain to the respondent the facts
related to the conciliatory character of the proceedings, to
legally binding effects of the outcome of the proceedings and to
the duty to participate in the proceedings.
(4) In the reply, the respondent may make proposals to resolve the
dispute by way of entering a settlement agreement.
(5) The conciliation body transmits a copy of the reply referred to
in sub-section 2 to the applicant.
(6) The applicant shall inform the conciliation body within the
established time period whether they agree to the proposal
which the respondent has made to resolve the dispute.
168
(7) Where the applicant and the respondent agree to the
settlement proposal, a written settlement agreement between
the parties is authenticated by the conciliator pursuant to
section 72.
70. Conciliation meeting

(1) Where the applicant and the respondent have failed to reach
a settlement pursuant to section 71 of this Act, the
conciliation body shall arrange a conciliation meeting
between the applicant and the respondent or their
representatives.
(2) A representative may participate in the meeting only if they
areauthorized to execute a settlement agreement on behalf of
the party they represent.
(3) The conciliation body shall set the time and place of the
meeting and send an invitation for attendance to the
applicant and the respondent.
(4) Where appearance at the meeting is mandatory, the
requirement to attend and the consequences of the failure to
appear at the meeting shall be explained in the invitation.
(5) The meeting shall be arranged within one month from the
date the application is lodged. The time period may be
extended for a good reason.
(6) Any meetings which take place during conciliation
proceedings are confidential.
(7) The conciliator appointed by the conciliation body shall
preside over the conciliation meeting and hear the parties’
presentation of their issues and examine any documents or
other evidence presented in the proceedings.
(8) Where the applicant and the respondent agree to the
settlement proposal, a written settlement agreement between
the parties is authenticated by the conciliator pursuant to
section 72 of this Act.
(9) The conciliator and the parties may consider use of
technology including electronic communications without
requiring their physical presence in order to increase the
efficiency and economy of the meetings.
71. Proposal to resolve the dispute and conclude a settlement

agreement
(1) Where the parties fail to reach a settlement during a
conciliation meeting under section 54, the conciliator may
present to the parties a proposal.
169
(2) When the conciliator presents to the parties a proposal under
sub-section 1, the conciliator shall give reasons for the
proposal to the parties.
(3) The conciliator shall transmit the proposal to the parties
within7 days of the conciliation meeting.
(4) Where it is just and reasonable in light of the facts of the
dispute and the conciliation proceedings, the conciliator may
recommend in the proposal that a party reimburse to the
other party reasonable expert, translation and witness costs which
have been or are to be paid by the other party.
(5) The parties may within 14 days as of the date of receiving
the proposal respond by either accepting or rejecting it.
(6) Failure by a party to respond under sub-section 6 shall be
deemed to be a rejection of the proposal.
(7) Where the parties have accepted a conciliator’s proposal, the
parties shall sign a settlement agreement to be authenticated
by the conciliator under section 72.
72. Authentication of a settlement agreement

(1) A settlement agreement shall be in writing and signed by all
the parties in the presence of the conciliator.
(2) The conciliator shall explain to the parties the legal effect
of authentication of the settlement agreement.
(3) The settlement agreement shall be authenticated by the
conciliator by affixing their signature on the agreement.
(4) The settlement agreement shall state the date when it is made.
(5) Subject to section 62, a signed copy of the settlement
agreement shall be delivered to each party.
(6) The authenticated settlement agreement shall be binding on
the parties.
73. Termination of conciliation proceedings

(1) Subject to sub-section 2, the conciliator or the conciliation
bodymay deem conciliation proceedings to have been
terminated—
(a) when a party declares to the conciliator that it wishes
to discontinue the proceedings;
(b) when a party’s conduct demonstrates an unwillingness
to participate in the proceedings, including when the
party—
(i) fails to provide a written reply to the conciliator
within an established time period; or
170
(ii) fails to carry out a required procedural step
without avalid reason; or
(iii) otherwise impedes the conduct of conciliation
proceedings;
(c) where there is a rejection of a conciliator’s proposal
referred to in section 71.
(d) when the conciliation body informs the parties of the
termination of conciliation proceedings pursuant sub-
section (a) and (b).
(2) Where a person has been ordered by Court or other body to

participate in conciliation proceedings pursuant to the
procedure provided in this Part, the conciliation proceedings
may not be terminated pursuant sub-section (1) (a) and (b)
before—
(a) the conciliator has presented a proposal pursuant to
section 71; and
(b) the conciliator has submitted to the Court or that other
body a written report giving reasons for the termination.
CONCILIATION BODY
74. Conciliation body
(1) The Council may, subject to section 76 grant accreditation
to a person to perform the services of a conciliation body
for the purposes of this Act.
(2) The Council shall set the requirements for a person to
qualify for accreditation as a conciliation body.
(3) No person shall act as a conciliation body in proceedings
commenced under this Act except where the person is
accredited by the Council.
75. Application for Conciliation Body
(1) A person may apply to the Council to be accredited as a
Conciliation Body.
(2) On an application for accreditation the Council may—
(c) accredit the applicant as a Conciliation Body
where thea pplicant is suitable under section 76; or
(d) refuse to accredit the applicant as a Conciliation Body
where the applicant is not suitable under section 76.
76. Conciliation Body – Suitability

(1) In deciding whether an applicant is suitable the Council
shall have regard to the following—
171
(a) whether the applicant meets the requirements set under
section 74(2);
(b) whether the applicant, or a person engaged or
employed by the applicant, has been convicted, or
found guilty, in the fiveyears before the application is
made, whether in the Act or elsewhere, of an offence—
(i) involving fraud or dishonesty; or
(ii) punishable by imprisonment for at least one year;
(c) whether the applicant is bankrupt or insolvent;
(d) whether the applicant, or a person engaged or
employed by the applicant, at any time in the five years
before the application is made, was involved in the
management of a corporation when—
(i) the corporation became the subject of a winding-
uporder; or
(ii) a controller or administrator was appointed.
(e) whether the applicant at any time in the one year
before the application is made had—
(i) an accreditation to be a Conciliation Body
cancelled, suspended, or withdrawn under this
Act;or
(ii) been refused accreditation to be a Conciliation
Body under this Act or under any other law.
77. Terms of accreditation

(1) An accreditation under this section is effective for
four years starting on the date the Council gives the
accreditation.
(2) An accreditation Conciliation Body may apply for
renewal of the accreditation.
78. Suspension, cancellation, or withdrawal of accreditation

(1) The Council may suspend for up to 12 months, or
cancel, a Conciliation Body’s accreditation if the
Council is satisfied on reasonable grounds that—
(a) the Conciliation Body has contravened this Act; or
(b) the Conciliation Body is no longer suitable for
accreditation,having regard to the matters
listed in section 76.
(2) Where the Conciliation Body has contravened this
Act, before deciding to suspend or cancel a
Conciliation Body’s accreditation, the Council shall
172
have regard to—
(a) the extent to which the Conciliation Body, or a
personengaged or employed by the Conciliation
Body, is responsible for the contravention; and
(b) the impact of the contravention on one or more of the
following—
(i) the rights or entitlements of a person under this
Act;
(ii) the integrity of the conciliation process under this
Act;
(iii) any conciliation process undertaken by the
conciliation body.
(3) Where the Council is satisfied that the Conciliation Body’s
accreditation should be suspended or cancelled, the Council
shall, in writing—
(d) inform the Conciliation Body that the Council intends to
suspend or cancel the accreditation; and
(e) give the Conciliation Body reasons for the suspension or
cancellation; and
(f) give the Conciliation Body at least 14 days after the
notice is given to the Conciliation Body to make
representations tothe Council about the matter.
(4) The Council shall consider any representations made by the
Conciliation Body within the time set out in the notice before
making a decision to suspend or cancel the Conciliation
Body’s accreditation.
(5) The Council may withdraw accreditation if the Council is
satisfied on reasonable grounds that information given to the
Council by the Conciliation Body in relation to the
ConciliationBody’s suitability for accreditation was false or
misleading.
79. Cost and expenses – Conciliation Body

(1) The Council may determine the reasonable amount that a
Conciliation Body may charge for costs and expenses for any
service provided by the body in relation to a conciliation
application.
(2) A Conciliation Body may charge costs and expenses—
(a) where the Council has made a determination under
section
78 (3)— up to the maximum amount for any service
provided by the body in relation to a conciliation
173
application;or
(b) where the Council has not made a determination under
section 78 (3)—up to a reasonable amount having
regard to the work done and expenses incurred by the
ConciliationBody.
(3) The claimant and respondent are—
(a) each liable to pay any costs and expenses charged by
a Conciliation Body; and
(b) each liable to contribute to the payment of any such
costs and expenses—
(i) in equal proportions; or
(ii) if the conciliator decides a different proportion—
the proportion decided.
80. Report – Conciliation Body

(1) A Conciliation Body shall provide a report to the Council on
request.
(2) A report shall include the following—
(a) the activities of the Conciliation Body under the Act;
(b) costs and expenses charged by the Conciliation Body for
any service provided by the body in relation to a
conciliation application made to the body;
(c) any other information determined, in writing, by the Council.
PART V – MISCELLANEOUS PROVISIONS

81. Court Annexed Mediation Rules
The Chief Justice may with the recommendation of the Rules
Committee established under section 81 of the Civil Procedure
Act make rules under Part 2B of this Act.
82. Forms
The parties to a mediation commenced under Part 2B shall use
the Forms Nos. 1 to 7 of the Second Schedule for the respective
purposes therein mentioned.
83. The Chief Justice may by order prescribe forms under Part 2B
of this Act.
84. General Rules

(1) Except for matters provided for by Section 81 and section 83,
the Council may by regulations provide for any matter
referred to in this Act as prescribed or to be prescribed.
(2) Without prejudice to any provision of this Act, regulations
174
under this section may contain such incidental,
supplementary and consequential provisions as appear to the
Council to be necessary or expedient for the purposes of the
regulations.
85. Limitation
(1) In reckoning a period of time for the purposes of a limitation
period specified by the Limitation of Actions Act, Public
Authorities Limitations Act or any other law on limitation,
the period beginning on the day on which a request for
mediation is made or conciliation initiated and ending on the
day which is 30days after either—
(a) 7 days after service of the request for mediation or
conciliation without response.
(b) a mediation or conciliation settlement is signed by the
parties; or
(c) the mediation or conciliation is terminated, whichever

first occurs, shall be disregarded.
(2) The Mediator or conciliator in a mediation or conciliation
respectively shall inform the parties in writing of the date on
which the mediation or conciliation ends.
86. Protection from Liability for Conciliators, Mediators,

Conciliation Body, and Mediation Body
(1) A conciliator or mediator is not personally liable for anything
done or omitted to be done in good faith—
(b) in the reasonable belief that the act or omission was
in the exercise of a function under this Act.
(2) A conciliation body or a mediation body, and a person
exercisinga function relating to the business affairs of a
conciliation body or mediation body under this Act, are not
personally liable for anything done or omitted to be done in
good faith—
(b) in the reasonable belief that the act or omission was
in the exercise of a function under this Act.
(3) A mediator in exercising a function under Part 2B shall have
theprotection in the same manner and to the same extent as
grantedunder section 6 of the Judicature Act to judges,
magistrates and other persons acting judicially.
175
FIRST SCHEDULE
(Section 10)
PROVISIONS RELATING TO THE CONDUCT OF BUSINESS
AND AFFAIRS OF THE COUNCIL
(1) The Council shall have at least four meetings in every financial year
and not more than four months shall elapse between one meeting
and the next meeting.
(2) Notwithstanding subparagraph (1), the chairperson may, and upon
requisition in writing by at least five members, convene a special
meeting of the Council at any time for the transaction of the business
of the Council.
(3) Unless three quarters of the total members of the Council otherwise
agree, at least fourteen days’ written notice of every meeting of the
Council shall be given to every member of the Council.
(4) The quorum for the conduct of the business of the Council shall be
five members.
(5) A meeting shall be presided over by the Chairperson or in his
absence, by a person elected by the Council at the meeting for that
purpose and the person so elected shall have all the powers of the
chairperson with respect to that meeting and the business transacted
there at.
(6) Unless a unanimous decision is reached, a decision on any matter
before the Council shall be by a majority of the votes of the members
present and voting, and in case of an equality of votes, the
chairperson or the person presiding shall have a casting vote.
(7) No proceedings of the Council shall be invalid by reason only of a
vacancy among the members.
(8) Nothing in this paragraph shall prevent the chairperson from
authorizing a member to use live telephone conferencing or other
appropriate communication or multimedia facilities to participate in
any meeting of the Council where, prior to the meeting, the member,
by notification to the chairperson, has requested for such
authorization.
(9) Subject to the provisions of this Schedule, the Council may
determine its own procedure and the procedure for any committee
of the Council and for the attendance of other persons at its
meetings and may make standing orders in respect thereof.
(10) Minutes of all Council meetings shall be kept and entered in books
kept for that purpose.
176
SECOND SCHEDULE
(SECTION 83)
177
THIRD
SCHEDULE
(SECTION 34 (3)
178

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REPUBLIC OF KENYA

OFFICE OF THE ATTORNEY-GENERAL AND

Sessional Paper No. 4 of 2024

The National Alternative Dispute Resolution

PRINTED BY THE GOVERNMENT PRINTER, NAIROBI

The National Alternative Dispute Resolution

THE POLICY DEVELOPMENT PROCESS

7 Gazette Notice No 678 dated 27th January 2020.

12 Available at the Kenya Law Reports Website at http://kenyalaw.org:8181/exist/kenyalex/index.xql

17 Available at http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/CivilProcedureAct.PDF

In recommendation-based processes, the neutral makes suggestions to the

1.2.3 Institutional framework in ADR

Institutional typology of ADR in Kenya is mainly public or private. Public

2. THE POLICY PROBLEM

Mechanisms such as AJS have some enforcement mechanisms, but some of

3.1 The Rationale for the policy

(f) ADR is a self-financing apparatus of justice. The neutral third parties

3.6.1 Human Rights approach

4.1.1 Meanings and definitions of key ADR terms

(b) The National Dispute Resolution Council, in collaboration

4.3.1 The Oversight ADR Body and Practice Area Committees

22 See Proposed Dispute Resolution Bill in the annexures

As such, the Committee recommends that:

4.6 Increasing Availability, Accessibility and Uptake of ADR services.

5.1 National Action Plan

5.3 Monitoring and Evaluation

10. Extent of court intervention.

CURRENT PROVISION PROPOSED PROVISION

[Act No. 4 of 1995, L.N. 394/1995,

“Registrar” means the Registrar

“The Council” means the

(3) An arbitration is international if—

CURRENT PROVISION PROPOSED PROVISION

(c) the parties have expressly agreed

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

(5) Where the arbitration

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

(1) No person shall be precluded by

CURRENT PROVISION PROPOSED PROVISION

(d) the Registrar shall appoint an

CURRENT PROVISION PROPOSED PROVISION

13. Grounds for challenge 13. Grounds for challenge

CURRENT PROVISION PROPOSED PROVISION

(2) From the time of his appointment

(2) Failing an agreement under sub-

(3) If a challenge under agreed (3) If a challenge under agreed

(5) the application under sub-

(6) the Arbitral Court may either

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

CURRENT PROVISION PROPOSED PROVISION

(7A) The other party shall file and

(8A) The Arbitral Court shall

Provided that the Arbitral Court