Towards Arbitration as a Means of Solving Trade Disputes in Kenya: A Case for Arbitration as An Alternative to Industrial Action and Litigation

Abstract

Trade disputes are a consistent occurrence in Kenya. This can be illustrated by the existence of various strikes in Kenya. Example of such strikes includes teacher’s strikes which have occurred consistently in Kenya and have a history of occurring regularly. A historical view of how trade disputes are resolved in Kenya shows that usually, industrial action (or strikes) as a right to workers, under Article 41(1) (d) of the Constitution, or litigation are preferred in an attempt to resolve the trade disputes. These two mechanisms of solving trade disputes have limitations that arbitration can address. Derek Bok in expounding on the limitation of litigation as a mechanism of solving disputes stated that .....Access to court may be open in principle, but in practice, however, most people find their legal rights severely compromised by the cost of legal services, the baffling complications of existing rules and procedures, and the long, frustrating delays involved in bringing proceedings to a conclusion. On the other hand, the limitations of industrial action or strikes as a means of solving trade disputes are statutory in nature. The Labour Relations Act Cap 234, under Section 76 for example lists requirements for a legal strike which includes: The trade dispute should concern the terms and conditions of employment or the recognition of a trade union if the trade dispute is unresolved after conciliation, a seven days written notice of the strike or lock-out ought to have been given to the other parties and to the Minister. Also, Section 78 of Labour Relation Cap 234, provides for prohibited strikes. Further, Section 81 of the Labour Relations Act Cap 234 prohibits strikes or lockouts in regard to essential services. These limitations of litigation and industrial action show that there is a need to use another means of solving trade disputes. This research paper seeks to advocate for the resolution of trade disputes through arbitration as a mechanism that is expedient, orderly and most appropriate to solve the trade disputes as and when they arise. There is now in place a comprehensive legal framework governing, arbitration in Kenya. With the passage of the Constitution of Kenya 2010, arbitration has now been explicitly recognized by Kenyan law. Arbitration can now be effectively applied in resolving trade disputes, thus easing access to justice. The future of alternative dispute resolution in Kenya is bright and really promising in bringing about a society where disputes are disposed of more expeditiously and at lower costs, without having to resort to judicial settlements.