Our Arbitration, Mediation & Dispute Resolution Services

Disputes rarely begin as a disagreement about the law. They begin as an unresolved commercial position that has been left to harden. The recurring causes on projects in Kenya are:

• Variations executed without being valued at the time, so their value is reconstructed months later from incomplete records.
• Claims submitted late, without the notices the contract required, and therefore resisted on procedure rather than merit.
• Delays where no one established which events actually affected completion, leaving both parties with a list of grievances rather than an analysis.
• Final accounts left unsigned, so retention is never released and the contract never closes.
• Payment certificates issued late or not at all, or payments made outside the period the contract allowed.
• Interpretation of the contract conditions — what a clause required, what a notice had to contain, and when it had to be given.

The practical consequence is that the strength of a construction case usually depends on the contemporaneous records rather than on the strength of the argument. Notices, programmes, instructions, valuations and site records decide these disputes.

Construction contracts do not let a party go straight to arbitration. They set out a ladder of steps, and the contract usually makes each step a precondition of the next. The ladder typically runs:

We advise on the step your contract actually requires and at which point in the sequence you are. Taking the wrong step, or skipping one the contract makes a precondition, is one of the most common ways a good case is lost.

Domestic arbitration in Kenya is governed by the Arbitration Act, which is modelled on the UNCITRAL Model Law. In outline:

• Arbitration is commenced by a notice under the arbitration clause of the contract. The clause determines where the arbitration is seated and which rules apply.
• The arbitrator or tribunal is appointed by the parties, or by a named appointing authority, or — where the parties cannot agree and the contract or the Act allows — by the court.
• A party may object to the jurisdiction of the tribunal, and the tribunal can rule on its own jurisdiction.
• The tribunal decides the procedure, and it has wide discretion over the conduct of the reference, including the taking of evidence and the use of expert evidence.
• The award is made in writing and is final and binding, subject only to the limited grounds for setting aside provided by the Act.
• The award is enforceable in the same way as a judgment of the court once it has been recognised and enforced through the court.

Because the route is contractual, the same commercial point can look very different depending on whether the notices were given and the records kept. That is why we are usually involved well before a tribunal is appointed.

Most construction disputes turn on quantum — how much is actually owed. That is measurement and valuation work, and it is the evidence a quantity surveyor is qualified to give. An expert’s duty is to the tribunal, not to the party paying for the report, and a report that reads as advocacy rather than analysis is discounted accordingly.

• Measuring and valuing the disputed works, applying the contract rates and the valuation rules the contract provides.
• Preparing cost and value evidence, including the effect of variations and the reasonableness of rates.
• Quantifying delay-related cost: preliminaries extended over the delay period, plant standing, supervision, escalation and loss of productivity.
• Reviewing the other party’s quantum evidence and preparing a report on where it departs from the contract or the measurement.
• Preparing expert reports and giving evidence, and participating in joint statements and expert meetings where the tribunal directs them.

Time claims are decided on programme evidence. Listing the things that went wrong is not an analysis; establishing which of those events actually pushed the completion date, and by how long, requires the programme records to be examined against the events.

• The as-planned programme, and the basis on which it was accepted.
• The updated programmes issued through the project, if any were issued.
• The progress records — site diaries, minutes, inspection records and correspondence — that show what was actually happening when.
• The notices given, and the dates they were given.
• The extension of time decisions, or their absence, and the reasoning behind them.

The quality of the programme records decides how far a delay claim can be taken. Where records are poor, we say so early — a claim that cannot be supported should be settled or abandoned rather than run to a hearing.

We also act on the other side of the process: as arbitrator on appointment by the parties or by an appointing authority. In that role the arbitrator is independent of both parties, decides the procedure, manages the reference to a timetable, rules on the evidence and the issues put to them, and issues a written award with reasons.

Our director Kobia Michubu is a Member of the Chartered Institute of Arbitrators (MCIArb) and acts as an arbitrator. Our arbitration work draws on the firm’s measurement, cost and contract background, which is what construction arbitrations are usually about.

Arbitration resolves a dispute, it does not make it cheaper. A negotiated or mediated settlement reached three months in is almost always better commercial value than an award obtained two years later. Where a dispute can be settled, we help settle it:

• Negotiated settlement, usually after the measurement and the entitlement have been worked through so both parties are negotiating on the same numbers.
• Mediation, with a neutral mediator and a defined timetable.
• Adjudication or expert determination where the contract provides for it and a fast, provisionally binding decision is worth more than a final one.
• Settlement agreements — drafting and implementing the terms, including the payment timetable, the release of retention and the closing of the final account.

Disputes run to fixed timetables, and the earlier we are involved the more of the record can still be protected.

• The contract and the arbitration or dispute resolution clause in particular.
• The notices given so far, and the dates they were given.
• The claim or the defence as it stands, including any submissions already filed.
• The programme and the updates issued through the project.
• The valuation, final account or certificate in dispute.
• Any expert report already prepared by either party.

Send us the documents or book a consultation, and we will set out the steps your contract requires, the timetable they impose and the options available at each one.