The Judiciary in Kenya is metamorphosising. The rapid response to the implementation of the Constitution has brought about structural and policy changes in the administration of justice.

The Honourable the Chief Justice in his report on the state of the Judiciary in 2011-2012 made no pretence of the dire situation the judiciary was in prior to August 2010.

The vetting of Judges and Magistrates has, despite the mixed reviews in its determinations, added to the generally accepted notion that the Judiciary is heading in the right direction.

Confidence is at an all time high. The numbers of Judges and Magistrates have increased to a total of twenty seven in the Court of Appeal, eighty six in the High Court, fifteen in the Land and Environmental Court, twelve in the Industrial Court and four hundred and thirty nine Magistrates.

The Court of Appeal and High Court have been decentralised in accordance with the devolved system under the Constitution. The High Court has further created divisions dealing with Criminal, Civil, Commercial and Admiralty, Environmental and Land, Family, Judicial Review and Constitutional cases.

There is of course the Supreme Court presided by five Judges.

In the CJ's report referred to above, the number of cases lodged in the High Court in 2011/12 were 37,954. The cases finalised were 51,604 and cases pending 299,472.

At the Court of Appeal there were 833 cases lodged, 822 finalised and 6,707 pending over  the same period.

It is expected that the pending cases will be reduced significantly with the recent increment in the judicial officers.

Changes made to the court rules coupled with judicial policy to stem the delays arising from deciding cases on technicalities, has further given credence to the Judiciary coming of age in the delivery of substantive justice expediently.

With all these "good things", happening, why would anyone still wish to Arbitrate or take time in an alternative dispute resolution process?

It is submitted there are significant and fundamental advantages in opting for ADR/Arbitration determination.

Article 159 (2) (c) of the Constitution recognises the need for these alternative dispute resolution forums.

Some advantages of ADR/Arbitration worthy of consideration are:

Courts are public institutions. The court files are in most cases accessible to the public. Court sessions are also open to the public (unless held "in camera" pursuant to an order of the court). Arbitration and ADR proceedings on the other hand are conducted in private and only open if the parties so agree. This protects confidential commercial and family information and data.

The parties' further have a choice of the arbitral tribunal to hear the dispute. This instils confidence in the disputants especially where it involves complex agreements.


Parties from different nationalities/jurisdictions are more comfortable in having a neutral forum for determination of the dispute then litigating in court.

In disputes that are highly technical, Arbitration and ADR gives the parties a choice of having a member of the tribunal who is an expert in that field.

Arbitration and ADR hearings are held in any place of the parties' choice and can follow rules of procedure agreed by the parties. This consensual process gives the parties and the tribunal considerable latitude.

Arbitral awards are normally enforceable in any country as opposed to a judgment from a Kenyan Court which is limited to the reciprocal enforcement provisions under the Foreign Judgments (Reciprocal Enforcement) Act Cap 43 of the Laws of Kenya.

There are of course disadvantages in Arbitration and ADR - the costs being a major factor. Jurisdictional issues also do at times arise but given the considerations above, these are dispute resolution process that commend themselves even in a transformed judiciary

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