Kenyan A-G and NCIA call for feedback on proposed ADR law reforms

The Nairobi Centre for International Arbitration (NCIA) and the Office of the Attorney General and Department of Justice are encouraging all stakeholders and members of the public to share feedback before the end of this month on three critical legislative proposals that could reshape Kenya’s dispute resolution landscape. 

Growing from the National Alternative Dispute Resolution Policy, which has been in the works for several years and was originally formulated in draft form by the NCIA to promote the practice of alternative dispute resolution (ADR) across sectors, the three draft bills collectively address adjudication in the construction sector, establish a National Dispute Resolution Council alongside promoting conciliation and mediation, and align the Arbitration Act with the best global and emerging practices.

“We all know construction plays a vital role in economic development, but when disputes drag on, everyone loses, from contractors to clients, investors, and ultimately, the public,“ said Desmond Odhiambo, a partner in the Nairobi office of Cliffe Dekker Hofmeyr, to Capital FM earlier this year. “Traditional methods like arbitration or litigation can be expensive and take months, even years, to conclude. Adjudication is a faster, more practical alternative. It’s a process where a neutral third party decides on the dispute after reviewing the facts from both sides. This typically happens within a few weeks, allowing work to continue with minimal disruption.”

As Odhiambo noted, adjudication is allowed in the construction industry, but only if the contract specifically includes it, whereas it has been written into law in countries like the UK since the 1990s. 

The Construction Adjudication Bill, one of the three legislative proposals currently under consideration, is intended to facilitate regular and timely payments in construction, and provide a stronger framework for adjudication, including clear timelines and ensuring decisions can be enforced like court orders. “A statutory approach could at least help ensure disputes don’t derail our development goals but resolve in a way that keeps progress moving,” said Odhiambo. 

The second of the three legislative proposals currently calling for stakeholder and public comments is the Dispute Resolution Bill, which is intended to give effect to the National Alternative Dispute Resolution Policy by making greater provision for ADR, including conciliation and mediation and establishing a National Dispute Resolution Council. Practice Committees covering arbitration, construction adjudication, mediation, conciliation, and community-based methods will also be formed by the Council, each tasked with developing a code of ethics, training curriculum, and certification mechanisms for practitioners in their areas of practice.

The Arbitration (Amendment) Bill aims to align Kenya’s arbitration framework with global best practices, and introduces key updates including provisions for emergency arbitrators, rules for third-party funding, and greater clarity on appeals and the role of the courts. The NCIA has made all three bills and the overall Policy available in full on its website, and strongly encourages stakeholders and the public to submit written comments by 30 June 2025, using the template provided.