Types of Disputes

The Constitutional Framework

Article 50, encapsulating the fair hearing right, is one of the rights and fundamental freedoms within the Bill of Rights contained in Chapter Four of the Constitution of Kenya, 2010. Article 19(3) of the Constitution provides that the rights and fundamental freedoms in the Bill of Rights — (a) belong to each individual and are not granted by the State; (b) do not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised and conferred by law, except to the extent that they are inconsistent with this Chapter; and (c) are subject only to the limitations contemplated in this Constitution. Consequently, unless the fair hearing right at Article 50 is limited as contemplated in this Constitution, it is not subject to any other limitation.

Express Constitutional Limitations

Article 25 provides that despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited — (c) the right to a fair trial. The right to a fair trial is captured in Article 50(2). It provides, in part, that every accused person has the right to a fair trial, which includes the right — (d) to a public trial before a court established under this Constitution. Consequently, as independent and impartial tribunals or bodies other than a court are not courts established under this Constitution, such tribunals or bodies may NOT entertain criminal proceedings in which accused persons are brought before them.

Article 163(3)(a) provides that the Supreme Court shall have exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of the President arising under Article 140. Therefore election disputes challenging the election of a President-elect may only be heard and determined by the Supreme Court.

All Other Disputes — Within Jurisdiction

These two types of disputes — criminal proceedings and electoral disputes challenging the election of a President-elect — are the only two types of disputes that independent and impartial tribunals or bodies not a court are expressly limited by this Constitution from resolving. Any other limitation on the type of dispute that may be heard and determined by such tribunals or bodies must comply with the provisions of Article 24 (the general limitation clause).

Disputes We Handle

Our Position

Aluochier Dispute Resolution, as an arbitral institution, administers arbitrations, adjudications, and mediations for all types of disputes save for criminal proceedings and electoral disputes challenging the election of a President-elect.