In Kenya, the world of alternative dispute resolution (ADR) is a world of growth. Aided by revisions in the 2010 Kenyan Constitution, and supported by the Judiciary, Kenya is leaping ahead of other countries in East Africa in this space. This growth is heavily accelerated by client demand – as courts become backlogged and clients look towards ways to complete projects and matters on time, they increasingly look towards ADR.
“We already have a legal framework to embrace dispute resolution, with robust systems of appointment for arbitrators and mediators,” says George King’ori, Managing Partner & Head of Dispute Resolution at Ashitiva Advocates LLP. He continues, “even in commercial courts, matters are going through screening and can be referred by a judge to mediation.”
King’ori speaks from more than a decade of experience. His tenure with Ashitiva almost dates back to the firm’s founding in 2011 and he has helped to build a respected dispute resolution team.
From Ashitiva’s onset, the firm grew organically but there came a time when the local demand for mediation and arbitration increased and a bigger and more specialised team had to be created. King’ori describes his current team as “dedicated and very balanced in terms of court disputes and those who are specialised in mediation and arbitration.” Specialisation has also grown among the team in specific areas such as labour, employment, commercial, constitutional and construction disputes.
A big growth area for the dispute resolution team is construction.
“There is a lot of construction and infrastructure development in Kenya,” says King’ori, “and because of this, many of our instructions are from this industry and many of these involve external actors.”
Over the next few years, political and commercial developments will only help to drive the dispute resolution sector forward. The African Continental Free Trade Agreement (AfCFTA) has, in the words of King’ori, “advanced what has already started, as many clients have been asking for alternative modes of dispute resolution.” Yet despite these requests, cross-border dispute resolution, even with the AfCFTA, may still have some hurdles to clear before things become truly streamlined.
“Things may not shift much when you look at the legal framework of the East African Community, as each country handles challenges differently. The political landscape of each country affects the way dispute resolution happens and there may not be much change as to how the disputes are handled in the shorter term, unless this is accompanied by judicial reform.”
Construction and infrastructure disputes though are, quite literally, building the future of both Ashitiva and the dispute resolution landscape in Africa, as more investors in these projects require newer and more efficient methods of dispute resolution. Also connected are politics which play a cyclical and constant role in the growth of this sector. As elections happen and new projects are promised to voters, the construction and consequent disputes begin anew. This has already been the case in Uganda and Tanzania, with their recent elections and soon to be the case with the 2022 Kenyan general election. King’ori muses on this growth saying, “The East African Community is still young in terms of the economy but there is so much going on – we are yet to reach our ceiling in East Africa.”
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