Swimming Against the Current: The Emerging Jurisprudence as Regards Right to Appeals of Arbitration Awards in Kenya

In Kenya, Arbitration is classified among the mechanisms commonly referred to as Alternative Dispute Resolution (ADR) and involves a neutral third party in the settlement of disputes. The Arbitration Act of Kenya, 1995[1] defines arbitration to mean ―any arbitration administered by a permanent arbitral institution or otherwise.[2] This definition has been termed by some scholars as not being an elaborate one and hence regard has to be had to other sources.[3] Arbitration has been described as a private consensual process where parties in dispute agree to present their grievances to a third party for settlement.[4] However, it has also been argued that Kenya‘s Arbitration Act contemplates both institutional and ad hoc arbitration as seen in the definition. Arbitration in Kenya is governed by various laws which include the Constitution[5], The Arbitration Act 1995[6], the Arbitration Rules, Civil Procedure Act[7] and the Civil Procedure Rules 2010[8] . Article 159(2) (c) of the Constitution provides that in the exercise of judicial authority, the Courts and tribunals must be guided by the principle of, inter alia, promotion of alternative forms of dispute resolution (ADR) including reconciliation, mediation, and arbitration.

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[1] No. 4 of 1995, Laws of Kenya ,Revised Edition 2012 [2010]

[2] Sec. 3, No. 4 of 1995 (2009)

[3] Muigua, K., Emerging Jurisprudence in the Law of Arbitration in Kenya: Challenges and Promises (Available at http://www.kmco.co.ke/index.php/publications/122- emerging-jurisprudence-in-the-law-of-arbitration-in-kenya-challenges-and-promises ); Google Scholar

[4] Farooq Khan, Alternative Dispute Resolution, A paper presented Chartered Institute of Arbitrators-Kenya Branch Advanced Arbitration Course held on 8-9th March 2007, at Nairobi.

[5] The constitution of Kenya (2010)

[6] No. 4 of 1995(As amended in 2009)

[7] Cap 21, Laws of Kenya

[8] Legal Notice No. 151 of 2010, Rules under Section 81, Cap 21