1.

Introduction & Legislation applies to arbitration in Kenya

The Arbitration Ordinance, 1914 (1914 to 1968)

Kenya has had laws on arbitration from as early as 1914 when the Arbitration Ordinance was enacted.
The Arbitration Ordinance, 1914 was a reproduction of the English Arbitration Act, 1889. The
principal attribute of this Ordinance is that it accorded courts in Kenya ultimate control over the
arbitration process in Kenya. Since the court system was at its infancy then, the Arbitration Ordinance
made little if any headway in promoting
resolution of disputes by arbitration.
1.1.2. The Arbitration Act, 1968 (1968 to 1995)
Before January 1996 when the current Arbitration Act, Cap 49 Laws of Kenya (Act No. 4 of 1995)
came into force, the legal framework on Arbitration was contained in the Arbitration Act Cap 49
Laws of Kenya (enacted in 1968). This Act was a mirror image of the English Arbitration Act, 1950
and came into force on November 22, 1968. The Preamble of the Act was emphatic that it was ‘An
Act of Parliament to make provision in relation to the settlement of differences by arbitration’.
It had no application to international disputes.
1.1.3. The Arbitration Act, Cap 49 Laws of Kenya (Act No. 4 of 1995)
Even after the annunciation of the Model Law on International Commercial Arbitration by the United
Nations Commission on International Trade Law (UNCITRAL) in June 1985, the Kenyan legislature
demonstrated lack of enlightenment by failing to appreciate the benefits of adopting such progressive
laws without delays.
The crusade for a new Arbitration Act which was spearheaded by the Kenya Association of
Manufacturers (KAM) did not come to fruition until December 1995 when the Arbitration Act No 4
of 1995 was enacted.
The Arbitration Act, 1995 is for all intents and purposes a replica of the UNCITRAL Model Law on
International Commercial Arbitration albeit with a few modifications that generally reflect the
domestication of the country’s obligations under the New York Convention.

The Arbitration Act 1995, as amended in 2010, applies to arbitration in Kenya.

Kenya acceded to the New York Convention on February 10 1989.

Civil Procedure Rules Order 46

Section 59 of the Civil procedure Act

Article 189 of the Constitution

Arbitration Institutions

NCIA

CIARB
Strathmore Dispute Resolution Centre

Dispute Resolution Centre

ICSI- World Duty Free Co v The Republic (ICSID Case No.ARB/00/7)

Cortec Mining & others vs The Republic (No ARB/15/29)

Institutional Arbitraion vs Ad Hoc Arbitration

Advantages & Disadvantage of Arbitration

Reading list

 Muigai, Githu (ed) Arbitration Law & Practice in Kenya. Law Africa, Nairobi. 2011.
 Muigua, Kariuki. Settling Disputes Through Arbitration in Kenya. ,(3rd ed) Glenwood
Publishing, Nairobi 2017
 Bernstein, Ronald; John Tackaberry and Arthur L. Marriott. Handbook of Arbitration
Practice. Sweet and Maxwell London, 1998.
 Mustill, Michael and Steward C. Boyd. Commercial Arbitration. 2nd Edition. Butterworths.
London, 1989.
 Gakeri, J. “Placing Kenya on the Global Platform: An Evaluation of Arbitration and ADR” in
International Journal of Humanities and Social Science Vol No 6 June 2011
 Torgbor, E.N.A. “A Comparative Study of Law AND Practice of Arbitration in Kenya,
Nigeria and Zimbabwe, with Particular Reference to Current Problems in Kenya” Phd
Dissertation University of Stellenbosch 2013.

 The Arbitration Act, 1995

 The Civil Procedure Act (Cap 21) Laws of Kenya.

a) Introduction to the nature of the Arbitration process

i. Objects and functions of Arbitration

ii. Potential Advantages of Arbitration and differences between arbitration and
litigation

o Handbook p.3-10; p. 13-32

o Mustill & Boyd Chapter 1 &2
o Muigai, G. and J. Kamau “The Legal Framework of Arbitration
in Kenya” in Muigai, Githu (ed) Arbitration Law & Practice in
Kenya. Law Africa, Nairobi. 2011 p. 1-10
o Muigua, K, 2017 chapter 1
o Aloo, L.O. & E.K. Wesonga “What is there to hide? Privacy and
Confidentiality versus Transparency: Government Arbitrations in
Light of the Constitution of Kenya 2010” ADR Vol 3 Issue 2
(2015) 1-29
o Mboce, Njoki. Rule of law, Economic development and
Investment Arbitration under Bilateral Investment Treaties
(BITS). (2016) 4(1) Alternative Dispute Resolution (ISBN 978-
9966-046-09-3), the Chartered Institute of Arbitrators –Kenya
Journal. http://www.ciarbkenya.org/assets/volume-4-issue-1--
vfinal--30th-march.pdf

2.Arbitration agreements

Validity

What are the validity requirements for an arbitration agreement?

To be valid, an arbitration agreement must meet the requirements set out in Section 4 of the Arbitration
Act 1995 (as amended in 2010) –

Notice of arbitration
It is provided for under the UNCITRAL Model Law.6 The notice of arbitration invokes the
arbitration agreement/ clause.7 It is for all intents and purposes the beginning of the arbitration
clause. The UNCITRAL Model Law provides that arbitral proceedings shall be deemed to
commence on the date on which the notice of arbitration is received by the Respondent.

Separability

Unilateral option

Third Parties

 Statutory Definition
 Formal Requirements
 May relate to existing or potential dispute
 Constituents of arbitration agreement
 Precedents and drafting suggestions

o Section 3 and 4 of Arbitration Act
o Mbobu, K. “The Arbitration Agreement” in Muigai, Githu (ed)
Arbitration Law & Practice in Kenya. Law Africa, Nairobi. 2011
p. 11-28
o Chapter 5,6,7, 10 of Mustill & Boyd
o Handbook p. 32-38, Appendix 1
o Muigua, K, 2017 chapter 2
o Scott v Avery (1850) 5.H.L.CS 811
o Telkom Kenya Limited and another v Kamconsult Limited HCCC
262 and 267 (Consolidated) of 2011 (O.S.) Nairobi (Ringera J.)