by Bella Onyango & Christopher Munene
1.Introduction.
At the recently held African Construction Law Conference in Nairobi, the spotlight was firmly placed on the future of infrastructure delivery of mega projects across the continent.
Africa’s construction sector is buzzing with activity—from Kenya’s Lamu Port,[1] the Standard Guage Railway (SGR) and Nairobi Express way, to Ethiopia’s Grand Renaissance Dam[2] and Tanzania’s Julius Nyerere Hydropower Station.[3] These projects are not merely development milestones; they are central to Africa’s economic ambitions and regional integration goals.
However, behind these engineering marvels lies a complex legal terrain. Delays, cost overruns, and high-stakes contractual disputes continue to threaten project success.[4] For legal practitioners and stakeholders alike, the pertinent question is no longer whether disputes will arise but how efficiently and fairly they can be resolved.[5]
This article provides a timely examination of the role of adjudication and dispute boards in managing project risks. Drawing from emerging developments and practical insights, it explores how these tools can assist stakeholders in navigating legal complexities, allocating risk effectively, and keep megaprojects on track in East Africa and beyond.
2.Undrestanding Adjudication and Dispute Boards.
In the African construction megaproject sector, efficient dispute resolution mechanisms are indispensable for timely project delivery and equitable risk allocation.[6] Two such mechanisms that have gained prominence are adjudication and dispute boards.[7] Adjudication as defined by Riches and Dancaster, is an expeditious, interim mode of dispute resolution aimed at delivering decisions within tight timelines- typically within 28 days.[8] It is particularly effective in resolving issues related to payment and scope variations,both of which are frequent in large-scale projects.[9] In South Africa, adjudication is a standard feature in construction contracts, such as those governed by the Joint Building Contracts Committee (JBCC) agreements.[10] Kenya and Ghana are increasingly incorporating adjudication clauses in their construction contracts to enhance project continuity and ensure liquidity.[11]
Dispute Boards (DBs), on the other hand are standing panels constituted at the commencement of a project to address disputes proactively.[12] They are integral to contracts based on the International Federation of Consulting Engineers (FIDIC) standards and are gaining traction across the continent.[13] There are three primary types of Dispute Boards:
- Dispute Review Boards (DRBs) which offer non-binding recommendations ;
- Dispute Adjudication Boards (DABs): which deliver binding decisions, subject to further review through arbitration or litigation.
- Dispute Avoidance/Adjudication Boards (DAABs): Introduced in FIDIC’s 2017 edition, DAABs combine dispute avoidance with binding adjudication.
The implementation of these mechanisms in African projects has proven successful in avoiding disputes and facilitating smoother project execution. Dispute boards and adjudication assist in delivering infrastructure projects on the continent through the prompt and effective resolution of issues.[14]
3.Challenges in Implementation
Despite the increasing use of adjudication and dispute boards in African megaprojects, several challenges still hinder their effectiveness. Disputes often arise from design deficiencies, poor workmanship, and coordination gaps.[15] Payment delays and scope variations also disrupt timelines and budget.[16] Unforeseen geotechnical conditions such as unexpected soil properties or underground obstructions, often result in significant cost overruns and project delays.[17]
Systemic challenges further compound these issues. Most African jurisdictions lack a statutory adjudication framework and rely on contract-based mechanisms. For example, Kenya currently relies on contractual adjudication[18], which may result in inconsistencies and enforcement hurdles. Unlike the UK, where statutory adjudication is well established, Kenyan courts face difficulties in enforcing adjudicator decisions.
Furthermore, awareness and technical expertise in adjudication and dispute board processes remain limited. This often leads to underutilization and a preference for traditional litigation or arbitration, which may be costlier and slower.
4.Strategies for Optimization.
There are several strategies which can be employed to optimize adjudication and dispute boards for these mega construction projects in Africa.
We shall highlight some of them;
- Have Tailored adjudication Clauses: Construction contracts should include clear adjudication clauses specifying the timelines and procedures. These can be aligned with FIDIC standards or modeled on statutory frameworks for example the UK’s Housing Grants, Construction and Regeneration Act 1996 .[19]
- Pre-Appointment of Qualified Adjudicators: Institutions such as the Chartered Institute of Arbitrators (Kenya Branch), the Architectural Association of Kenya, and the Nairobi Centre for International Arbitration maintain panels of seasoned adjudicators. Pre-appointing such professionals ensures efficiency and project momentum.
- Digital Evidence Management: Technologies like Oracle Primavera P6 streamline project tracking and support efficient submission preparation, which is crucial given the tight timelines in adjudication procedures. This was illustrated in South Africa where JBCC rules require detailed submissions within 10 working days.[20]
- Risk-Responsive Adjudication: Many disputes stem from unforeseen site conditions. Including adjudication mechanisms to address such risk allocation issues ensures interim relief and keeps the project on track. A key precedent is the South African case of Framatome v Eskom Holdings SOC Ltd (357/2021),[21] where the Supreme Court upheld the enforceability of adjudicator decisions.
- Statutory Reforms: Statutory adjudication can provide legal certainty. Kenya could adopt legislation modeled on the UK’s adjudication laws to improve the enforceability and predictability of adjudication outcomes.
- Capacity Building: Ongoing training for engineers, project managers, and legal professionals is essential. Promoting awareness among stakeholders and institutionalizing dispute resolution education will foster a culture of efficiency and early dispute avoidance.
5.Conclusion.
The Optimization of adjudication and dispute boards is crucial to the successful delivery of African construction mega projects.
By adopting tailored adjudication clauses, pre-appointing competent adjudicators, leveraging digital tools, addressing risk allocation issues proactively, reforming legal frameworks, and investing in capacity building, stakeholders can mitigate disputes, ensure timely dispute resolution, and promote project efficiency. Governments, industry leaders, and development partners must collaborate to institutionalize robust and efficient dispute resolution systems. Such frameworks are vital to meeting Africa’s ambitious infrastructure development goals without incurring unwarranted delays or costs.
- Abhishek Mishra, ‘A Chinese-built port in the Indian Ocean: The story of Kenya’s Lamu port’ (Observer Research Foundation, 1 June 2021) https://www.orfonline.org/expert-speak/a-chinese-built-port-in-the-indian-ocean-the-story-of-kenyas-lamu-port accessed 21 May 2025. ↑
- Aryn Baker, ‘Ethiopia Aims to Lift Itself Out of Poverty by Damming the Blue Nile’ (Time, 2 June 2016) https://time.com/4354767/ethiopia-blue-nile-dam/ accessed 21 May 2025. ↑
- Nuzulack Dausen, ‘Tanzania switches on first turbine of hydro plant in World Heritage Site’ (Reuters, 26 February 2024) https://www.reuters.com/business/energy/tanzania-switches-first-turbine-hydro-plant-world-heritage-site-2024-02-26/ accessed 21 May 2025. ↑
- Chabota Kaliba and others, ‘Cost escalation and schedule delays in road construction projects in Zambia’ (2009) 27(5) International Journal of Project Management 522. ↑
- Ibid. ↑
- Kariuki Muigua, ‘Construction Adjudication: Overcoming Challenges of Enforcement’ (July 2023) https://kmco.co.ke/wp-content/uploads/2023/07/Construction-Adjudication-Overcoming-Challenges-of-Enforcement.pdf accessed 21 May 2025. ↑
- Ibid ↑
- John Riches and Christopher Dancaster, ‘Construction Adjudication’ (2nd edn, Wiley-Blackwell 2004) https://books.google.com/books/about/Construction_Adjudication.html?id=U1VavyBLfOsC accessed 21 May 2025. ↑
- Ibid ↑
- Adine Abro Attorneys, ‘Construction Adjudicators’ (Adine Abro Attorneys) https://adine-abro.co.za/construction-adjudicators/ accessed 21 May 2025. ↑
- Desmond Odhiambo, ‘Kenya: Keep Construction Moving – Should Kenya Adopt Statutory Adjudication for Construction Disputes?’ (Capital FM, 22 April 2025) https://allafrica.com/stories/202504220085.html accessed 21 May 2025. ↑
- Kariuki Muigua, ‘Construction Adjudication: Overcoming Challenges of Enforcement’ (July 2023) https://kmco.co.ke/wp-content/uploads/2023/07/Construction-Adjudication-Overcoming-Challenges-of-Enforcement.pdf accessed 21 May 2025. ↑
- Ibid ↑
- Ibid ↑
- Roseline Obiageli Nwosu, ‘Construction Industry Dispute Resolution Processes’ (Paper presented at the Interactive Session between the Engineering, Construction and Real Estate Interest Group of CIArb Abuja Chapter and the Federal Ministry of Water Resources, Abuja, 10 August 2022) https://sahelstandard.com/features/05/construction-industry-dispute-resolution-processes/ accessed 21 May 2025. ↑
- Ibid ↑
- Chrysothemis Paraskevopoulou and Georgios Boutsis, ‘Cost Overruns in Tunnelling Projects: Investigating the Impact of Geological and Geotechnical Uncertainty Using Case Studies’ (2020) 5(9) Infrastructures 73, https://doi.org/10.3390/infrastructures5090073 accessed 21 May 2025. ↑
- Desmond Odhiambo, ‘Kenya: Keep Construction Moving – Should Kenya Adopt Statutory Adjudication for Construction Disputes?’ (Capital FM, 22 April 2025) https://allafrica.com/stories/202504220085.html accessed 21 May 2025. ↑
- Danika Balusik and Kyle Bowles, ‘Prompt Payment Regulations: Is It Time to Revisit the Past?’ (Cliffe Dekker Hofmeyr, 13 July 2021) https://www.cliffedekkerhofmeyr.com/en/news/publications/2021/Dispute/dispute-resolution-alert-13-july-Prompt-payment-regulations-Is-it-time-to-revisit-the-past.html accessed 21 May 2025. ↑
- Joint Building Contracts Committee (JBCC), JBCC Adjudication Rules (January 2020) https://www.jbcc.co.za/docs/JBCC_adjudication_rules2020.pdf accessed 21 May 2025. ↑
- [2021] ZASCA 132 (SCA) ↑