ARBITRATION IN KENYA: FACILITATING ACCESS TO JUSTICEBY IDENTIFYING AND REDUCING CHALLENGES AFFECTING ARBITRATION NGUYO WACHIRA PATRICK G62/70225/2013 Research project submitted in partial fulfillment of the requirements for the award of the degree Master of Laws at the School of Law, University of Nairobi DECLARATION By submitting this dissertation I declare that the entire work contained herein is my own original work and I am the sole author thereof (save to where I have disclosed otherwise) and the same has never been submitted elsewhere for any qualification. Student ………………………………………. ………………………… NGUYO WACHIRA PATRICK Date Supervisor ………………………………………. ……………………… LEONARD OBURA ALOO Date ii ACKNOWLEDGEMENTS I would wish to thank the Kenyan Government through the Office of the Attorney General, for providing financial support towards this study. To my colleagues at the Office of the Attorney General and the head of department who made it possible for me to complete this study on time. Appreciation to Mr.Leonard OburaAloo my supervisor for his guidance and assistance all through my working on this paper. His invaluable support and stimulating discussions in this study was exemplary. To GeofreyNgae, thank you for the support in the design, analysis and collation of data. My sincere gratitude to my parents Nguyo and Muthoni, for the support and encouragement that they have given me through my academic sojourn and for their inspiration in this study and my education career. Finally my thanks also to all others I have not mentioned especially the respondents without whose help, this work would not have been possible. May the Lord bless you all abundantly. iii DEDICATION To my parents, Ian, Graceand Sarah may the Lord bless you iv LIST OF ABBREVIATIONS ADR - Alternative Dispute Resolution TJS - Traditional Justice System IJS - Informal Justice Systems DRC - Kenya Dispute Resolution Centre ICJ - International Commission of Jurists UNCITRAL – The United Nations Commission on International Trade Law model law on arbitration New York Convention - The Convention on the Recognition and Enforcement of Foreign Arbitral Awards OF 1958 ELR- Empirical Legal Research HCCR – High Court Criminal Case HCCC – High Court Civil Case HC ELC -High Court Environment and Land Case v LIST OF STATUTES AND CONVENTIONS The Constitution of Kenya 2010 The Arbitration Act (as amended in 2009)and the Arbitration Rules The Civil Procedure Act and the Civil Procedure Rules The Investment Disputes Convention Act The Employment Act, The Nairobi Centre for International Arbitration Act The Evidence Act New York Convention, The United Nations Commission on International Trade Law Model law on arbitration vi TABLE OF CASES 1. Republic Vs Mohamed Abdow MohamedHCCRNairobi Case No 86 OF 2011 unreportedeKlr 2. Christ for All Nations Vs Apollo Insurance Co. Ltd[2002] 2 E.A 366 3. Paul OrangaMumaVs Dominic MumaKworo HC ELCKisiiCase No 5 “B” OF 2008 unreportedeKlr 4. Midroc Water Drilling Ltd Vs Cabinet Secretary and two Others HC Nairobi Milimani Commercial Courts case No 267 of 2013 eKlr 5. NyameinoMagetoVsSimionMagetoNyameinoHC ELC KisiiCase No 168 of 2011 unreported eKlr vii LIST OF TABLES AND FIGURES Table 1: A comparison of the features in arbitration and litigation Table 2: Table on data analysis Table 3: Table on data analysis Table 4: Table on data analysis Table 5: Table on data analysis Table 6: Table on data analysis Table 7: Table on data analysis Table 8: Table on data analysis viii ABSTRACT Solving Disputes at any level should be encouraged by creating mechanisms that resolve disputes fast and with least cost. The citizen should not be left to despair in the pursuit of justice but instead the legal institutions/facilitators should create an enabling environment that enhances the delivery of justice at any forum. It would be very noble if members of a society would take the responsibility of resolving their own disputes by creating a system of justice that fosters arbitration. This is a system that delivers justice outside the formal court justice framework. Arbitration removes the emphasis on procedure and legal technicalities. This is unlike the formal court justice framework which is time consuming and tedious to the masses where the middle and low income commercial and civil disputes are in plenty. Access to dispute solving mechanisms should be simple and quick. An effective justice system is one that; is accessible, dispenses justice without delay and in accordance to law and equity. It acts as a tool that aids in the creation of a cohesive society. These can be provided with an effective arbitration system. With the current economic growth and development in Nairobi, Nakuru and Kericho courts in these counties are struggling with case management. The challenges include; a case backlog, few judges and magistrates to hear cases, lack of judicial facilities and lack to access of those facilities where available. This then clogs access to the court justice system, increases legal costs and the citizen are left to despair and their hearts cringe when they have to go and seek justice in court. This paper will discuss the removal of challenges in the arbitration process. The research seeks to unravel the challenges that hinder the society from using arbitration, or if they use arbitration where can we add emphasis (within the arbitration process) and enhance its access. The paper shall endevour to ensure that arbitration can be accessible; disputes can be disposed of timely and without delay. ix Courts are not a panacea to solving all the disputes in Kenya and specifically; Nairobi, Nakuru and Kericho. It is the responsibility of the legal actors to make either of the antagonistic parties to a matter access a solution in a timely manner and with least expenses and the arbitration process should thus be considered as an option better than the court justice system. In Nairobi, Nakuru and Kerichothe arbitration framework is still developing. Institutional membership is increasing, the Nairobi Centre for International Arbitration has been created about an year ago, arbitration trainings and seminars are being organized frequently but is this being felt at the dispute solving level. This paper will also involve the collection of data from Nairobi, Nakuru and Kerichocounties to identify the challenges that face the litigants and legal professionals in the access to arbitration. At the conclusion there will be anevaluation of the challenges identified as hindering the arbitration process and thereafter propose solutions to ameliorate the challenges identified. There will be proposals of ways that will lead to enhanced access of arbitration and methods that reduce the barriers to arbitration. x