Article 159(2)(c) of the Constitution of Kenya, 2010 obliges courts to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. ADR is no longer optional in Kenyan civil practice — for most disputes, it is the default first step.
Court-annexed mediation
Most civil suits filed in the High Court, ELC and ELRC are referred to court-annexed mediation under the Civil Procedure (Court-Annexed Mediation) Rules, 2022. Sessions are conducted by accredited mediators within 60–90 days, with settlement rates exceeding 50% in family and commercial matters.
Private mediation
Parties may agree to mediate privately before or instead of litigation. The mediator is jointly appointed, the process is confidential and a signed mediated settlement agreement is enforceable as a contract. Faster and more flexible than court-annexed mediation.
Arbitration
Governed by the Arbitration Act, 1995 (as amended), arbitration is the leading ADR route for commercial disputes. Awards are final and enforceable; appeals are confined to narrow grounds. The Nairobi Centre for International Arbitration (NCIA) administers institutional cases under modern rules.
Traditional dispute resolution
Article 159 expressly preserves traditional dispute resolution mechanisms, provided they do not contravene the Bill of Rights, are not repugnant to justice and morality, and do not exclude the jurisdiction of the formal courts. Particularly relevant in land and family disputes within rural communities.
Negotiation and structured settlement
Direct negotiation, often supported by advocate-led without-prejudice correspondence and structured settlement meetings, resolves a high proportion of commercial disputes before any forum is engaged. Cheapest, fastest and most preserving of business relationships.
When to choose ADR over litigation
Where parties have an ongoing relationship (commercial, family, employment), where confidentiality matters, where speed is critical, or where the dispute is highly technical and benefits from a specialist tribunal. Litigation remains preferable where binding precedent is needed, urgent interim relief is required, or one party will not negotiate in good faith.
Enforcement of settlements and awards
A court-annexed mediation settlement is registered as a court order and enforced as a judgment. A private mediation agreement is enforceable as a contract. An arbitral award is recognised and enforced under the Arbitration Act and, internationally, under the New York Convention to which Kenya is a party.
Citations & further reading
Frequently asked questions
Can I refuse court-annexed mediation?
Practically, no. Where a matter has been referred to mediation, parties must participate in good faith. Refusal or bad-faith participation can attract costs sanctions.
Is an arbitral award final?
Yes. Appeals are confined to narrow grounds under Section 35 (setting aside) and Section 39 (limited appeal on points of law if expressly agreed). The merits of the dispute are not re-examined.
How long does arbitration take in Kenya?
Institutional arbitration at the NCIA typically concludes within 9–18 months. Ad hoc arbitration timelines depend on the parties and the arbitrator's availability.
Related practice areas
This article is for general information only and does not constitute legal advice. Readers should obtain specific counsel on their particular matters.