Construction projects concentrate money, deadlines and multiple contracts in one place, and so generate disputes at a reliable rate. The same relationships that produce the dispute also argue for resolving it without a public fight, which is why mediation has become the first resort on Kenyan construction projects.
Which construction disputes suit mediation?
- Delays and extensions of time, where records and programmes tell a story both sides read differently
- Variations and their valuation , what was instructed, what it cost, who approves it
- Interim payments and certificates withheld or undervalued
- Defective works, responsibility for them, and the cost of rectification
- Disputes with professional appointees , engineers, architects, project managers , where future references may be needed
- Frictions between employer and financier over drawdowns and conditions precedent
Why mediate while the project is still running?
Because the project must go on. An adversarial claim filed mid-works disrupts cooperation, invites retaliatory certificates and slows decisions, whereas mediation happens privately and without prejudice , what is said cannot be deployed later if the dispute continues. Standard forms of construction contract commonly anticipate this with tiered escalation: determination by the contract administrator, reference to a dispute board, and arbitration or litigation beyond. A mediation step slots into that ladder, and the Civil Procedure (Court-Annexed Mediation) Rules 2022, published on Kenya Law, bring the same approach to proceedings already filed in court, a programme described on the Judiciary website.
What does preparation for a construction mediation look like?
Effective sessions are document-led. A chronology of instructions and events, the contract provisions in issue, the payment history, expert valuations of the claims, and a clear statement of what settlement would need to contain. Parties with settlement authority in the room , not merely on a phone chain , consistently reach terms.
How is a mediated construction settlement enforced?
Like any properly concluded settlement: as a contract, and where proceedings are pending, adopted as a judgment and enforceable as a decree. Drafting should address payment timetables, release of retentions, final accounts and the fate of unresolved heads of claim. Our infrastructure and project finance practice advises on construction contracts and claims, our arbitration and ADR practice on the dispute clauses behind them, and our practice areas page sets out the combined offering.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.