Parties told to “resolve this out of court” often meet two words: mediation and arbitration. Both sit outside the public courtroom and are recognised in Kenyan law, yet they answer the dispute in fundamentally different ways. Choosing between them turns on who decides, what gets produced, and how the result is enforced.
How do mediation and arbitration differ?
- Who decides , a mediator facilitates agreement that the parties themselves reach; an arbitrator hears the case and delivers a binding decision
- The outcome , mediation produces a settlement both sides have written; arbitration produces an award that may go against either party
- Formality , arbitration mirrors court procedure in miniature, with pleadings, evidence and hearings; mediation is a structured negotiation
- Privacy , both are private, which is why commercial parties prefer them to open court
- Review , an award is final with narrow grounds of challenge; a settlement binds as an ordinary agreement
Which is easier to enforce in Kenya?
An arbitral award carries particular weight: under the Arbitration Act 1995, published on Kenya Law, it is enforceable in much the same way as a judgment of the High Court. A mediated settlement binds as a contract, and where a case is already in court, the settlement can be adopted as a judgment and enforced as a decree , the mechanism the Judiciary uses in court-annexed mediation. Properly concluded and drafted, both routes end in enforceable instruments.
Can the two work together?
Frequently. Well-drafted commercial contracts stage their escalation: negotiation, then mediation, then arbitration as the final step. The sequence gives the parties a genuine chance to settle early, on their own terms, while preserving a definitive end point if mediation fails. Parties can agree those mechanics in advance rather than negotiating them mid-dispute.
Which suits your dispute?
Parties who need to preserve a working relationship, who value control over terms, or who want the matter concluded within weeks tend toward mediation. Parties who need a binding determination , perhaps to satisfy a lender or close the chapter , tend toward arbitration. Our arbitration and ADR practice advises on the choice and drafts the clauses that implement it, and our practice areas page places both within the firm’s wider disputes work.
For guidance on your specific situation, contact CS Advocates LLP , call, WhatsApp, or book a confidential consultation at our Westlands, Nairobi office.