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About Mr. Kairu
Mr. Kairu was admitted as an Advocate of the High Court of Kenya in 1985. He has practised law in Kenya as a commercial litigation lawyer since 1985. He was until April 2009 a partner in Kairu & McCourt Advocates, a law firm he co-founded in 1993. He retired from the partnership in April 2009 to go into full time Arbitration and Mediation work under his own name.
He is a Fellow of the Chartered Institute of Arbitrators. As an Arbitrator he has adjudicated upon numerous commercial disputes between parties and rendered Awards. He has also mediated commercial and family disputes.
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Arbitration
Arbitration and Mediation are two different forms of alternative dispute resolution (ADR) which can save you time, money, and stress. In today's business world, most contracts have provision for arbitration or mediation or both as the dispute resolution processes of choice. Arbitration is a form of dispute resolution process where parties in dispute appoint an independent and impartial third party, the arbitrator, to hear and determine the dispute. If they wish the parties can appoint more than one arbitrator. The decision of the arbitrator, known as the arbitral award is binding on the parties and is enforceable through the courts in the same way a judgment of the court is enforced. Arbitration is most commonly used for the resolution of commercial disputes.
Arbitration has many advantages when compared to the litigation or the court process. Arbitration is flexible. It is speedy. The parties appoint the arbitrator or if they like they have an arbitrator appointed for them by a nominated organization. The arbitrator derives his authority from the agreement of the parties. Generally this authority is found as an arbitration clause in a commercial contract between the parties. Arbitration is in most cases cost effective. It is conducted in private away from public glare. Arbitration will only be possible if the parties in dispute have agreed to refer the dispute to an arbitrator for decision. However, there is a special case of arbitrations mandated by statute which do not necessarily have to be agreed upon by the parties.
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Mediation
Mediation on the other hand is a method of resolving disputes where parties in dispute appoint an independent third party, the mediator, to facilitate negotiations between them. The power to resolve the dispute is vested in the parties themselves who decide and pick the best option for resolving their dispute. In many cases, the mediator does not have authority to make a binding decision. Mediation is private and confidential, as opposed to trials, which are public; the mediator is neutral and objective and helps the parties explore alternatives.
The process of mediation is faster than litigation; the process is less expensive than a long and costly trial. Both parties share in the cost of a mediator; the possibility of continuing the business relationship later is much greater since the dispute has been resolved with consideration of both parties; the mediator may be able to propose creative solutions or accommodations if the parties empower the mediator to do so.
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Mr. Kairu's Profile
Mr. Kairu has in the course of his professional career gained a wealth of experience in arbitration, alternative dispute resolution and commercial civil litigation. He has, as an arbitrator, handled complex cases in civil aviation, the oil industry, building construction contracts, insurance, transport industry, real estate, banking, and cases involving diverse commercial business organisations. As a trainer, Kairu has trained lawyers, law students, community based organisations and members of civil society in the practice and theory of alternative dispute resolution.
Steven Gatembu Kairu was born in Muranga district in Central Kenya in 1960. He attended schools in Central and Nairobi provinces. On graduation from Lenana School after his Advanced Level Examinations in 1979 he was admitted to study law at the Faculty of Law, University of Nairobi in 1980. He graduated from the University of Nairobi with a Bachelors of Laws, LLB degree in Law in 1984. The same year he joined The Kenya School of Law and took bar exams and was awarded a Diploma in Law before being admitted as an advocate of the High Court of Kenya in September 1985.
On admission as an advocate of the High Court of Kenya in 1985, Kairu was employed as a legal assistant in the firm of Hamilton Harrison and Mathew’s advocates, a leading law firm in Kenya, where he had undertaken his pupilage. He worked in the Litigation department of Hamilton Harrison and Mathews advocates until 1986. During his tenure at that firm, Kairu handled commercial litigation in the High Court and in the subordinate courts in Kenya and gained considerable experience in civil litigation. In late 1986, Kairu left the firm of Hamilton Harrison and Mathews advocates to join and head the litigation department in the smaller firm of Kimani Kairu & Co Advocates.
In January 1989 enrolled for a master’s degree in law in the School of Law, Boston University, Massachusetts, U.S.A where he attained his Master of Laws degree, LLM, in Banking Law in 1990. On returning to Kenya in 1990 Kairu returned to the firm of Kimani Kairu & Co Advocates where he remained until 1993. In the same year, Kairu joined the University of Nairobi, Faculty of Law as a lecturer in the Commercial Law Department.
In July 1993 Kairu left the firm of Kimani Kairu & Co Advocates to establish the firm of Kairu & McCourt Advocates. After 16 years, Kairu retired from that firm in May 2009 to establish a fully fledged Arbitration and Mediation practice.
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Frequently Asked Questions
1. What is Arbitration?
Arbitration is a form of alternative dispute resolution (ADR), used in place of litigation with a view to resolving a dispute without the cost and time of going to court. It involves dispute resolution by an independent third party, the arbitrator, whose decision which is known as an award is binding on the parties.
2. What is Mediation?
Mediation is facilitated negotiation where parties in dispute appoint a neutral third party known as a mediator to facilitate the negotiations between them with a view to reaching an amicable settlement.
3. How is an Arbitrator appointed?
The appointment of an arbitrator must be mutually agreed upon by the parties. The parties may also nominate an organisation, for example, the Chartered Institute of Arbitrators to appoint an arbitrator for them once a dispute arises. A person should not accept appointment as an Arbitrator if they know of any circumstances that might impair their impartiality or independence
4. What does the process of arbitration entail?
Arbitration is a flexible process. The parties can tailor it to suit their specific needs and circumstances. One of the ways in may be modelled is for the parties to submit and exchange pleadings i.e. the statement of claim from the claimants and the statement of defence from the Respondents. The claimants then reply to the defence and then the Parties present their evidence. Upon the close of evidence, the parties then present their submissions after which the arbitrator gives them an award. The parties may alternatively have “ a documents only” arbitration where the dispute is resolved by reference to documents only.
5. How long does the process take?
Arbitration is an expeditious process and can take a very short time subject to co-operation by the parties and the firmness of the arbitral tribunal.
6. How is Arbitration different from court process?
Arbitration is a less formal process than litigation. It does not have the stress associated with litigation. It is cost effective. It is faster than court process. It is flexible and private. Arbitral proceedings are confidential. An Arbitral tribunal can have more than one arbitrator, if the parties wish.
7. Is the Arbitrator’s award enforceable?
The award of the arbitrator is final and binding on all parties to it. It is enforceable in the same way a judgment of a court may be enforced.
8. Can the Arbitrator’s award be challenged in court and under what circumstances?
The Arbitration Act provides for limited grounds for challenging an award. Unless the parties agree the arbitral award is not appealable.
9. How do I get the other person to participate in the proceedings?
Arbitral proceedings are a matter of consent between two or more conflicting parties. Therefore, the parties have to either invoke an Arbitration Clause in an agreement to which they are party. They can also be referred to arbitration by a court of law.
10. Is there legal framework of Arbitration in Kenya?
Arbitration is governed by the Arbitration Act, 1995 which is based on the UNCITRAL Model Law on International Commercial Arbitration which was prepared and adopted by the United Nations Commission on International Trade Law on 21st June 1985.
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Contact Me
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Publications
Over the course of the year, I will be publishing content and availing it free of charge on my website.
Currently these are the titles available for download.
Understanding the Mediation Process < Steven Gatembu Kairu, 2008 >
In the early part of this year, 2008, the word "mediation" featured prominently in the media in Kenya following the appointment of H.E Mr. Kofi Annan as mediator in the post election conflict in Kenya.
Three incidents during that period provide a justification for this paper.
The First Incident.
One politician was reported to ...Click Here to download this publication (.pdf 105 Kb).
Arrange an Arbitration
Arrange a Mediation