Arbitration has long been heralded as the “gold standard” for commercial dispute resolution in Kenya. It promises a “private room” where disputes are resolved with speed, technical expertise and confidentiality.
Yet, as the complexity of Kenyan commerce grows, the gap between this promise and operational reality of arbitration is becoming increasingly visible.
Why Parties Opt Out of Court
Kenyan courts often operate in the opposite way: public, procedural, inflexible and slow.
Even relatively straightforward commercial or specialized cases can drag on for years due to backlogs, frequent adjournments, recusal applications and constitutional petitions.
This is not necessarily a reflection of institutional failure, but a consequence of the volume, constitutional mandate, and public nature of disputes courts are required to handle.
Parties also cannot choose the judge, who is typically a generalist. Complex commercial or technical disputes in fiels such as construction, energy, finance, tech etc may therefore be decided without specialized expertise, often prolonging proceedings.
It is therefore no mystery why arbitration is favoured by parties seeking speed, confidentiality and the ability to appoint decision-makers with relevant industry expertise.
Does Arbitration Live Up to Its Promise?
The ongoing dispute between Kenya Breweries Limited (KBL) and JILK Construction, active as of February 2026, serves as a litmus test.
What began as a KSh 163 million invoiced dispute over work at Kisumu Brewery reportedly escalated to KSh 2.4 billion under arbitration.
KBL alleges that after agreeing to arbitration, JILK and the arbitrator conspired to inflate the disputed amount. The claims, which JILK denies, include concealing prior relationships and exchanging money during proceedings, turning the case into a murky, protracted matter.
The arbitration between JILK and KBL began in January 2020 but before the award could be declared in December 2024, KBL successfully sued to have it stopped by the High Court on the basis of discoveries it had made in the course of the dispute.
KBL said it had discovered prior relationships between JILK Construction Ltd and Mutinda Mutuku, the quantity surveyor and arbitrator appointed by the Architectural Association of Kenya.
KBL’s attempts to get Mutuku to recuse himself from the arbitration were however turned down by the Arbitration Tribunal as well as the High Court, although the court noted the serious nature of allegations against Mutuku.
KBL says in its applications and affidavits that it later found out that six months before he was appointed the arbitrator, Mutuku had been paid KSh174 million by Pastor Kamau of JILK and that three weeks before he was appointed, had received another KSh150 million from JILK.
On top of that, Mutuku and Pastor Kamau remained in contact and were visiting each others’ offices.
KBL says in its applications: “It is clear from the above that the process leading to the appointment of the arbitrator and his failure to disclose his relationship with JILK are highly irregular, corrupt and deliberate undermining of the arbitration processes.”
“Unfortunately, neither the Arbitration Act nor the Architectural Association of Kenya provide mechanisms for compelling disclosure by a recalcitrant arbitrator,” KBL added.
The application by KBL driving these points home was a last-ditch effort, and the company threw everything at the case, dragging in the Directorate of Criminal Investigations and the Architectural Association of Kenya and adding the Commission on Administrative Justice (the Ombudsman) as an interested party.
The DCI was dragged in for its apparent failure to investigate the corrupt and criminal conduct between Mutuku and JILK, through its Managing Director Pastor Engineer Sammy Maina Kamau, intended to effectively defraud KBL. AAK was enjoined because it appointed Mutuku despite the apparent conflict of interest between him and JILK.
While the merits of both sides remain to be determined, the broader lesson is clear: arbitration without trust risks failure and can ultimately return disputes to the very courts the process was meant to avoid.
Towards Calibrated Oversight
The KBL vs. JILK saga shows that arbitration in Kenya is at a crossroads. For the system to remain credible, the unchecked “autonomy” of the past must be balanced with accountability.
The Arbitration (Amendment) Bill 2025 is a crucial step in that direction precisely because it tackles the structural gaps that have eroded trust in ADR.
Rather than leaving the process entirely to the parties’ discretion, the Bill proposes mandatory disclosures of potential conflicts (including prior relationships with arbitrators), clearer grounds for setting aside awards and rules to curb excessive cost and time escalation.
It also introduces summary disposal mechanisms and defined timelines for key stages of arbitration to prevent unnecessary delays and procedural gaming.
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