A recent ruling from the High Court of Kenya (Commercial and Tax Division), National Water Harvesting & Storage Authority v J & K Investment Kenya Limited [2026] KEHC 2174 (KLR), offers a practical and important answer to this question under Fédération Internationale Des Ingénieurs-Conseils (FIDIC)-based contracts.
The FIDIC-based contract required disputes to first go through a dispute adjudication board (DAB). The parties never appointed one. When a dispute arose and went straight to arbitration, the employer challenged the arbitrator’s jurisdiction.
The Court upheld the arbitrator’s jurisdiction to hear the dispute on three key grounds:
- The DAB appointment was time-bound and the parties missed the deadline.
- The failure to constitute the DAB rendered the adjudication mechanism inoperable.
- Sub-clause 20.8 expressly allowed direct referral of disputes to arbitration where no DAB existed. The words ‘or otherwise’ in this sub-clause, anticipated exactly this scenario.
The takeaway – Under FIDIC contracts, failure to constitute a DAB does not strand a party, it may, by the contract’s own terms, unlock the right to go straight to arbitration.
