Arbitration is typically the first option for purely contractual disputes in Kenya. In line with Kenya’s Constitution and the Arbitration Act, Kenyan courts should prioritize arbitration for contract disputes.
Article 159(2)(c) of the Constitution of Kenya 2010 emphasizes that the judiciary should promote ADR mechanisms. Courts are encouraged to submit to arbitration or other ADR methods when parties have agreed to them or when such methods are deemed more suitable for the dispute at hand.
The Arbitration Act provides rules on how arbitration should be conducted. It upholds the principle of party autonomy, which means that if parties to a contract have an arbitration clause, courts should generally respect that choice and refer them to arbitration.
Order 46 the Civil Procedure Rules also contains provisions supporting reference of matters to ADR under certain conditions.
Arbitration is preferable to litigation because:
i. Arbitrations can be resolved more swiftly than court litigation which helps reduce case backlog.
ii. Arbitration in many scenarios is less costly than litigation.
iii. Parties in arbitration can select arbitrators who have specialized knowledge relevant to the contract in dispute and this often leads to more informed decisions.
iv. Arbitration offers privacy, Unlike open court proceedings.
v. In arbitration, parties have the freedom to craft their rules and timelines that best serve their dispute, unlike litigation.

While arbitration is strongly encouraged, litigation remains essential in cases where:
i. There is no Arbitration Clause or Agreement.
ii. In complex matters or in cases that creates public Interest.
iii. In cases where parties’ challenge an arbitral award in court.