The Other Eighty Per Cent

Isaac Aluochier, S.Arb, S.Adj, Arbitral Fellow, CPM · Aluochier Dispute Resolution · July 2026

Ask most Kenyans where a dispute goes to be resolved, and they will say the courts — a magistrate, the High Court, a queue outside a registry window. The Judiciary's own research tells a different story: fewer than one dispute in five in Kenya is actually resolved inside a formal courtroom. The other four — the unpaid supplier, the disputed inheritance, the boundary quarrel between neighbours, the shareholder disagreement that never reaches a summons — are settled, or more often simply endured, elsewhere. In family sitting rooms. In the fine print of a contract nobody read closely. In silence, when the cost or delay of pursuing a remedy exceeds what the remedy is worth.

This is not a story about a failing Judiciary. It is a story about a country whose disputes have outgrown the room built to hold them — and about the eighty per cent of Kenyans whose disagreements are being decided, right now, by processes never built to be fair, transparent, or accountable to anyone.

Article 47 of the Constitution does not confine itself to government counters. It guarantees every person the right to administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair — wherever that action is taken under a law, a rule of common law, customary law, an agreement, an instrument, or any other document. Read plainly, that guarantee reaches into every private arbitration clause, every family settlement, every decision made under any instrument two parties have signed. The Fair Administrative Action Act was written to make it enforceable, not merely aspirational.

Almost nobody uses it, because almost no forum has been built to deliver on it deliberately. That is precisely the gap the AITAR, AISTAR, and AIETAR frameworks were built to close.

AITAR is the general door — commercial, civil, domestic, and international disputes, resolved by tribunals constituted as independent State organs under Article 1(3)(c) and Article 47, not as a private club operating on borrowed credibility. AISTAR is the door for succession and estates — the disputes that tear families apart slowest and most quietly, given a forum built with particular care for that vulnerability, including the protection of minor beneficiaries. AIETAR is the door for electoral disputes, open independently of and ahead of the 2027 electoral calendar, so grievances are not left to accumulate for want of anywhere lawful to go.

All three sit on the same constitutional floor. None is a favour granted by ADR; each is a mechanism the Constitution already promised, now finally built and open for use.

Set this against what disputants currently choose between. The formal courts remain available, but carry the delay and formality the eighty per cent are already avoiding. Private arbitration and informal settlement exist, but neither is bound by Article 47 the way AITAR proceedings are — a private arbitration's confidentiality clause can quietly shield an unfair process from ever being examined, because ordinary contract law does nothing to force it open. AITAR proceedings cannot be closed that way. Article 50(1) guarantees open proceedings on both the arbitration and the adjudication pathways, limitable only under Article 50(8) — never by a confidentiality clause the parties might sign. Article 25(c) goes further still, preventing any contractual provision from ousting a party's constitutional right to that forum in non-criminal matters.

Set it, too, against the informal fora many disputants fall back on by default — elders, family committees, unregistered mediators. These often resolve disputes with real wisdom, but typically without a reasoned, examinable decision, without Kenyan statutory grounding, and without onward enforceability should the losing party simply refuse to comply. An AITAR Determination or Award, an AISTAR settlement instrument, or an AIETAR Determination proceeds throughout under Kenyan procedural law, with a published body of institutional jurisprudence in the Digital Gazette that grows with every decision — producing exactly the accountable, precedent-building record that neither the private clause nor the family sitting room can offer.

None of this requires waiting for a future election cycle, a court reform programme, or a change in the law. The frameworks exist, are Gazetted, and are receiving matters now. A disputant need not be a large commercial party to use them; the same constitutional floor of fair, reasoned, accountable resolution is available to the family settling an estate, the trader owed a debt, the party to an electoral grievance, and the international counterparty seeking a seat that is both constitutionally grounded and internationally enforceable.

The other eighty per cent of Kenya's disputes have always deserved a forum built for them on purpose. That forum now exists.