A commercial dispute is heading for arbitration, and the first question is where to begin. Arbitration is only as strong as the clause and the preparation behind it. A premature or defective notice can create procedural arguments, and a badly assembled record can weaken an otherwise strong claim. This article explains what a party should do before and immediately after commencing arbitration in Kenya.
Quick answer
Read the arbitration clause and any pre-arbitration steps first, then preserve the evidence and build a chronology. Define the claim, the remedy and the limitation position, and consider whether urgent relief is needed before the tribunal is formed. Commencement usually requires a notice or request in the form the clause and rules require, followed by appointment of the tribunal. Keep every step documented.
Check the arbitration clause and pre-conditions
The clause decides whether the dispute must go to arbitration, which disputes are covered, the seat, the rules and how the tribunal is appointed. It may also require a negotiation or mediation step before arbitration can begin, or a notice within a stated period. Missing a pre-condition can give the other side a jurisdictional objection, so the clause should be read carefully before any notice is served.
If the clause is unclear or inconsistent with the rest of the contract, that should be addressed early. The article on drafting an arbitration clause in Kenya explains the elements a workable clause should contain.
Preserve evidence and build a chronology
Start with the arbitration agreement, the chronology, the notices, the key correspondence, invoices and proof of service. Keep originals, record when documents were received, and avoid altering or selectively collecting records after the dispute begins. A short chronology identifying the issue, the relevant clause, key events and the requested remedy helps advisers and decision makers assess the next step.
The evidence should be organised by issue, not by date alone. A schedule of documents and a schedule of loss make the case easier to present, and they help to identify gaps before the other side does.
Define the claim, the remedy and the limitation position
Arbitration is a dispute-resolution route, not a substitute for a cause of action. The claimant should identify the legal basis of the claim, the factual case supporting it and the remedy sought, whether damages, specific performance, a declaration or another order. The amount claimed should be supported by evidence and a calculation.
The limitation position should be confirmed before commencement, because a claim that is out of time may be met with a limitation defence in the arbitration just as in court. The contract, the applicable law and the seat may all affect the analysis, so the point should be checked with advice where there is any doubt.
Urgent relief before the tribunal is formed
Assets can be moved, evidence can disappear and projects can stall before a tribunal is appointed. The Arbitration Act 1995 allows for interim measures, and the courts have a role in supporting arbitration where urgent relief is needed. The available route depends on the seat, the rules chosen and the facts, and an application for interim relief should be made promptly and supported by evidence.
Where the dispute is better suited to court, the article on ADR and court proceedings compared explains the choice. The firm’s arbitration and ADR practice advises on urgent applications and on the interplay between court and tribunal.
Commencing the arbitration: notice, request and appointment
Commencement usually begins with a written notice or request to the other party, followed by a request to the institution if institutional rules apply. The document should identify the parties, the contract, the dispute and the relief sought, and should comply with the notice and timing requirements in the clause and the rules. Proof of service should be kept.
The tribunal is then appointed under the clause or the rules. If the parties cannot agree on appointment, the agreed institution or the court may make the appointment under the framework in the Act. The appointing route and any deadline should be confirmed before the notice is served, so that the process does not stall.
The respondent’s first steps
A respondent should not ignore the notice. It should review the clause and the request, decide whether there are objections to jurisdiction, consider whether to appoint an arbitrator or agree on one, and prepare its response and any counter-claim. A counter-claim is usually subject to the same document and evidence disciplines as the claim.
Where the respondent believes the dispute was not validly referred or that the tribunal lacks jurisdiction, the objection should be raised through the proper procedure and at the proper time. Silence can make the objection harder to sustain later.
Case management and the hearing
Once the tribunal is appointed, it will set a procedural timetable for pleadings, document exchange, witness statements, expert evidence and the hearing. The timetable is the framework for the case, and the parties should plan their evidence and submissions around it. The tribunal may hold a case-management conference to settle procedural issues.
The hearing follows the procedure agreed by the parties or set by the tribunal. Preparation should mirror the discipline of a court trial: a clear chronology, documents organised by issue, witness statements that address the matters the witness can prove, and a concise opening and closing submission.
Costs and when to take advice
Arbitration costs include the tribunal’s fees, institutional or administrative fees where applicable, the parties’ own legal costs and expert costs. The tribunal usually deals with costs in the award and may allocate them between the parties. Budgeting early, and reassessing at each stage, helps the parties decide whether to continue or settle.
Advice is worth taking before the notice is served, where the clause is unclear, where limitation is in doubt, where urgent relief may be needed, or where the amount in dispute is significant. The article on the commercial arbitration process in Kenya explains how the case proceeds after commencement.
Primary sources
- Arbitration Act, 1995, Kenya Law, for the statutory framework of arbitration in Kenya.
- Nairobi Centre for International Arbitration: arbitration downloads, for published rules and model clauses.
- Kenya Law, for the legislation and rules referred to in this article.
This article is general information, not legal advice.