A Review of Privacy and Confidentiality in Arbitration in Kenya

Abstract

Kenya enacted a fresh constitutional order in 2010. The Constitution expanded the Bill of Rights besides providing for national principles and values of governance. The Constitution heralded a new order to which all the existing laws and practices had to conform. Privacy and confidentiality are some of the attributes that arbitration enjoys over other dispute resolution mechanisms. Yet, some jurisprudence has emerged in Kenya that shows that privacy and confidentiality are no longer regarded as central to arbitration. Further, there exist different schools of thought – one from the United Kingdom, and the other from Australia – as to whether confidentiality attaches to materials and evidence used in arbitration. This study set out to examine the scope of privacy and confidentiality in Kenya in light of the new constitutional dispensation. It was found that the core legislation on arbitration in Kenya is silent on privacy and confidentiality. Thus, resort has to be had to party autonomy which allows parties to determine the applicability of privacy and confidentiality. It was found that the Constitution of Kenya has eroded the contours of privacy and confidentiality. This is especially due to constitutional supremacy, emboldened Bill of Rights, and the novel national values and principles of governance.