The Role of Kenyan Courts in Arbitration, Enabling or Constraining?

Abstract

Even as arbitration becomes popular, it is imperative to have the same examined with a view to identifying and addressing concerns that would otherwise impede its growth. That way, access to justice that is expeditious is achieved, which in turn leads to growth of the Kenyan justice system. This paper raises significant questions as to the place of courts in arbitration in Kenya, highlighting some of the strengths and weaknesses that can be seen in our jurisprudence. The main aim of this research is to develop a clear cut dividing line as to the relationship between courts and arbitral tribunals. This study seeks to establish that any challenges highlighted in the arbitral-judiciary process that would strain this relationship are, to a great extent surmountable and ought to be embraced by all concerned. Arbitration in Kenya has tremendously grown, and this can be attributed to the fact that there has been more awareness by parties entering into it, and professionals who have been trained to become competent arbitrators. This study seeks to critically analyze the role that the advocates, the arbitrators and courts play in the arbitral process. The paper will study in great detail, the procedure from the commencement of arbitration, to the delivery of the award, the consequences thereof and the enforcement that usually follows where there is a recalcitrant party. This study will then make a comparative analysis with the arbitration procedure in England. With this comparison, this paper will seek to fill the gaps that exist in the arbitral process in Kenya, and thereafter give a host of key findings and recommendations.