Arbitration vs. Litigation in Kenya: Which Should You Choose?

Commercial disputes in Kenya increasingly face a threshold question: should we go to court, or go to arbitration? The answer depends on your contract, your relationship, the nature of the dispute, and the remedy you need. Here is what you need to know.

Arbitration in Kenya: the legal framework

Kenya's Arbitration Act is modelled on the UNCITRAL Model Law. It governs both domestic and international arbitration, establishes the supervisory jurisdiction of the High Court, and provides for the enforcement of arbitral awards.

When does your contract force arbitration?

If your contract contains an arbitration clause, it is generally binding. Under Section 6 of the Arbitration Act , if a party commences court proceedings on a matter covered by an arbitration agreement, the other party may apply for a stay of those proceedings and the court shall stay them unless the agreement is null and void.

Key advantages of arbitration

• Confidentiality — arbitration proceedings and awards are private, unlike court judgments which are public record
• Speed — well-managed arbitration is faster than Kenyan courts, where commercial cases can take 3–7 years
• Specialist arbitrators — parties can choose arbitrators with relevant industry expertise
• Finality — limited grounds for appeal under Section 35 of the Arbitration Act (procedural irregularity, corruption, public policy)
• International enforcement — Kenya is a signatory to the New York Convention , making Kenyan arbitral awards enforceable in 165+ countries

When litigation may be preferable

• You need urgent injunctive relief (a court can issue one in hours; a tribunal takes longer to constitute)
• You need to join a third party who is not a party to the arbitration agreement
• The dispute involves a point of law you want to establish as precedent
• The other party is likely to be insolvent. Insolvency proceedings must go through court
• The amount in dispute does not justify arbitration costs (arbitrators charge professional fees; courts charge filing fees)

Arbitration can be ad hoc (governed only by the Arbitration Act and the parties' agreement) or institutional (administered by a body like the Nairobi Centre for International Arbitration (NCIA) ). Institutional arbitration provides built-in administration, default rules for appointment of arbitrators, and an established process — which significantly reduces procedural disputes. For high-value commercial matters, we recommend NCIA institutional arbitration with a three-member tribunal.

Facing a commercial dispute?

Susan Musyoka is a CIArb-certified Associate Arbitrator. We advise on dispute strategy and represent clients in arbitration, mediation, and litigation. Contact us today.

This article is general legal information, not legal advice, and does not create a lawyer–client relationship.