Month: March 2026

Introduction

The Agreement and Conditions of Contract for Building Works (the JBC Contract) is Kenya’s predominant form of contract for private construction projects. It was published by the Joint Building Council in Kenya with the sanction of the Architectural Association of Kenya and the Kenya Association of Building and Civil Engineering Contractors.

Conversely, the International Federation of Consulting Engineers (FIDIC) Contracts have been developed as the international standard for the construction industry. They are recognised globally as a suite of standard form contracts for international construction and engineering projects.

Both regimes provide structured dispute resolution mechanisms aimed at ensuring efficiency, fairness, and continuity of project de livery. This article critically examines those mechanisms, contrasts their practical application, and highlights strategic approaches contractors may employ to recover outstanding sums and protect contractual rights.

Administration and Structure

JBC Contracts are administered by the Architect and Quantity Surveyor, who are appointed by the Employer. The contract clearly outlines their roles, powers, and duties. FIDIC Contracts, on the other hand, are administered by the Engineer, who is appointed by the Employer (under the Red and Yellow Books). Under FIDIC Contracts, the Red Book provides the conditions of contract for the construction of buildings and engineering works where the detailed design is done by the Employer (or his representative). It is not suitable if most of the works are Contractor-designed. The Yellow Book, on the other hand, lays out the conditions of contract for plant and design build for electrical and mechanical plant and for building and engineering works where the design is done by, or on behalf of, the Contractor.

In contrast, the Silver Book is only suitable for use with experienced Contractors who are familiar with sophisticated risk management techniques. It is thus suitable for the provision on a turn key basis of a process or power plant, of a factory or similar facility, or of an infrastructure project, or of other development where:

• A high degree of certainty of final price and time is required; and
• the Contractor takes total responsibility for the design and execution of the project with little involvement of the Employer.

Under the usual arrangements for turnkey projects, the Contractor carries out all the Engineering, Procurement and Construction (EPC), providing a fully equipped facility, ready for operation (at the turn of the key). In terms of administration of the Contract, there is no Engineer under the Silver Book, and the Employer directly administers the Contract. Both FIDIC and JBC Contracts can be amended to meet the tailored needs of the project.

Settlement of Disputes Under JBC

Settlement of disputes under the JBC is regulated under Clause 45 (the notice requirement). Where a dispute arises between the Employer or the Architect on his behalf and the Contractor, either during the progress of Works or after the completion of the Works, such dispute shall be notified in writing by either party with a request to submit it to arbitration and to concur in the appointment of an Arbitrator within thirty (30) days of the notice.

The dispute shall be referred to the arbitration, and the final decision on the appointment of the Arbitrator is to be made by the parties. If parties fail to agree on an Arbitrator, one shall be appointed by the Chair or Vice-Chair of the Architectural Association of Kenya or the Chartered Institute of Arbitrators (Kenya Branch). Arbitration proceedings must be preceded by a notice issued within ninety (90) days of the occurrence or discovery of the matter or issue giving rise to the dispute.

Matters that can be referred to arbitration before practical completion include the appointment of a replacement Architect, Quantity Surveyor or Engineer upon the said persons ceasing to act. Other matters can only be referred to arbitration after practical completion/abandonment of works/termination unless the Employer and Contractor agree otherwise in writing.

Arbitration provides a viable alternative to litigation, as an arbitral award is final and binding. Notwithstanding the foregoing, Clause 45.4 compels parties to first attempt to settle the matter amicably before referring it to arbitration. Disputing parties may attempt to resolve issues amicably, either independently or with the aid of third parties. Negotiation involves direct, informal, and flexible dialogue between parties, aimed at reaching a mutually acceptable solution.

Mediation, by contrast, engages a neutral third-party mediator to facilitate communication and guide parties toward a voluntary settlement. While the mediator does not impose a decision, an executed mediation agreement presented to the Court for adoption becomes legally enforceable. Alternative Dispute Resolution (ADR) is increasingly favored over litigation for being cost-effective, private, and less adversarial, fostering long-term relationships between parties.

Settlement of Disputes Under FIDIC

Under FIDIC Contracts, the dispute resolution process is substantially the same under the Red, Yellow, and Silver Books. The only difference arises from the fact that:

• The Red Book provides for a standing Dispute Adjudication Board (DAB), whereas under the Yellow and Silver Books, it is an ad hoc DAB (on a need basis); and
• There is no Engineer’s determination under the Silver Book because this contract is administered by the Employer directly. What we have is the Employer’s determinations under Clause 3.5.

Clause 20.4 onwards provides for a multi-tiered dispute resolution process which comprises of:

i. Procedure before the DAB

Members of the DAB must be mutually agreed upon by the parties within twenty eight (28) days from the date the Contract comes into force. This also includes provision for appointing DAB members where parties fail to agree on their initial appointment, replacing DAB members, terminating the appointment of DAB members and remunerating DAB members.

• Either party may refer a dispute to the DAB for its decision, including any dispute as to any certificate, determination, instruction, opinion or valuation of the Engineer (or Employer under the Silver Book).
• The notice of dispute must be in writing and provided to the other Party and the Engineer.
• The DAB (acting as experts and not Arbitrators) is required to give notice of its decision to the parties, including reasons supporting the decision, no later than the 56th day after it received such reference.
• Following the DAB decision, if either Party is dissatisfied with the decision, it may give a notice of dissatisfaction (NOD) within twenty eight (28) days of its receipt.
• Similarly, if the DAB fails to give a decision within the 56-day period, either Party (on or before the 28th day after the day of receipt of the notice of the decision) may give a NOD. The notice shall set out the matters in dispute and reasons for dissatisfaction.
• The parties may then refer the dispute to amicable settlement and ultimately to arbitration for “final” determination.
• Parties may contractually incorporate expert determination during this period to resolve technical, financial or valuation disputes before escalating to formal arbitration.
• If DAB gives a notice of its decision and no NOD has been given by either Party during the 28-day period, then the DAB’s decision shall become final and binding upon the Employer and Contractor.

 

ii. Enforcing a DAB decision (Clause 20.7)

• Where a party fails to comply with a DAB decision that is final and binding, clause 20.7 expressly allows the other Party to refer this failure directly to arbitration. It does not have to go back to the DAB or through an amicable settlement process.

iii. Amicable Settlement (Clause 20.5)

• Parties are required to attempt an amicable settlement of any dispute before commencing arbitration.
• This, however, only applies where the dispute has been referred to the DAB and/or where either party has given a NOD.
• Unless parties otherwise agree, arbitration may be commenced on or after the 56th day after the day on which the NOD was given – even if no attempt at an amicable settlement was made.

iv. Arbitration

• All 3 books provide that the disputes will be finally determined by arbitration.
• Clause 20.6 provides that disputes will be finally settled under the Rules, institution, and language set out in the Appendix to the Tender.
• Such disputes include ones in respect of which the decision (if any) of the DAB has not become final or binding, settlement has not been reached, and/or where the DAB’s appointment expires

Conclusion

Incorporating ADR clauses in contracts, leveraging expert reconciliation for technical disputes, and engaging with government entities through structured alternative dispute resolution mechanisms protects Contractors’ financial interests and secures recoveries for work done while maintaining long-term relationships with the Employer.

Time, they say is money; and this aphorism of commerce has been acknowledged by the Courts in Ghana. To address complaints by litigants about delays and the waste of productive hours in long drawn-out litigation, the rules of court allow parties in a lawsuit to choose more expeditious procedures, under the right circumstances.

These short cuts could however turn into lengthy labyrinths if not managed properly.

This article discusses some of the expedited litigation procedures in Ghana and how these options, albeit well intended, do not always produce the desired results. The article also draws the attention of potential litigants to some of the unintended consequences of these expedited litigation procedures.

The Summary Judgment

Summary Judgments allow for an early resolution of a matter when there is no real dispute on the facts or law, thereby avoiding a full trial.

This rule is designed to allow a party who has initiated a lawsuit to obtain judgment without a trial by filing a Motion for Summary Judgment and demonstrating to the Court that the Defendant has no reasonable defence to the claim (or a part of the claim to which the Motion relates). It must be noted however that, a Defendant on whom a Motion for Summary Judgment has been served is at liberty to oppose the Motion for Summary Judgment by also demonstrating to the satisfaction of the Court that he/she has a good defence to the lawsuit (or the part of the lawsuit to which the Motion relates).

If the Motion for Summary Judgment is refused, the Court may grant the Defendant permission to file a Statement of Defence for the case to take its normal course to the trial stage.

Even when the Motion for Summary Judgment is granted in respect of a part of the claim, the Court may order that the execution of the judgment be deferred until after the trial of the other part of the claim or any counterclaim raised by the Defendant has been dealt with.

It must however be noted that, a Defendant against whom a Summary Judgment has been granted may apply to set aside or vary the Summary Judgment if the Defendant was absent at the hearing of the Motion within fourteen days of being notified of the Summary Judgment.

 

The Default Judgment

Default Judgments are designed to ensure compliance with the procedural deadlines for key steps in the litigation process such as entry of appearance or the filing of a statement of defence and a counterclaim as the case may be.

If a party fails to comply with procedural deadlines, the court could grant default judgment without proceeding to trial.

The drawback of this shortcut is that since the courts are keen on having cases determined on their merits instead of technicalities, a party against whom default judgment is granted may apply to set aside the default judgment for the case to take its normal course subject to payment of cost to the affected party. This reverses all the time saved and puts the case back on its regular track, to follow the standard court procedures.

Striking Out Pleadings

The Court may either on its own or on the application of a party strike out another party’s pleadings if the pleadings

1. disclose no reasonable cause of action or defence;
2. are scandalous, frivolous or vexatious
3. seek to prejudice, embarrass and delay the fair trial of the action; or
4. are an abuse of the process of the Court.

Where an entire Statement of Claim is struck out for instance, the lawsuit may terminate immediately. Striking out portions of pleadings found to be frivolous or irrelevant, also removes immaterial facts from the case, narrows the issues and enables the trial to focus on the relevant issues only. This considerably reduces the complexity of the case and length of the trial.

Unfortunately, taking advantage of this shortcut could result in the affected party filing an appeal against the ruling striking out the pleadings and the pursuit of the appeal could lead to delays in the resolution of the case. A party whose pleadings have been struck out may also file an application to restore the pleadings in accordance with the rules.

Interrogatories

A party may request the permission of the Court to serve on the other party in the suit, questions relating to the case and ask that party to answer those questions. Non-compliance by a party on whom Interrogatories are served may, in the case of a plaintiff, result in the action being dismissed, or, in the case of a defendant, the defence being struck out.

The responses to the questions asked may substantially clarify and narrow the issues in dispute and enable the trial to be focused on relevant issues only. Fewer issues generally translate to a less complex case and a shorter trial. The trial may be avoided altogether if an admission is made that triggers a judgment to be obtained on admission.

On the other hand, a party seeking to delay proceedings may either file frivolous questions or refuse to respond to the questions on grounds of privilege. Also, where the responses do not sufficiently answer the Interrogatories, the Court may make orders requiring the party to furnish additional responses either by affidavit or on oral examination. Consequently, significant time maybe spent at the Interrogatories stage only for the matter to later take its normal course.

The Judgment on Admissions

A party may serve on the other party in the lawsuit, a request to admit the truth of a fact or the authenticity of a document. The party on whom the request is served must specifically admit or deny the truth of the fact or the authenticity of a document mentioned in the request.

Where a party admits the truth of certain facts or the authenticity of documents, it clarifies and narrows the issues in dispute and reduces the scope of the trial, which significantly shortens it.

The downside of this procedure however is that where the facts admitted to, do not dispose of the matter, time would have been wasted on the request.

In addition, admission by a party to a fact is not conclusive as that party may subsequently withdraw the admission either with the Court’s permission or with the consent of the other party. The decision to withdraw an admission may also be the basis for substantial delays especially where the withdrawal is contested.

The Pre-Trial Settlement Conference

For commercial disputes, the rules of the Commercial Court require parties to attend a mandatory Pre-Trial Settlement Conference within a period of thirty days after the close of pleadings. The Pre-Trial Settlement Conference is essentially a court assisted alternative dispute resolution process presided over by a judge who affords the parties an opportunity to settle their disputes without going to trial. Pre-Trial Settlement Conferences are designed to settle cases or clarify the issues before trial, potentially resolving the case early or simplifying the trial process. The pre-trial judge may encourage settlement or issue directions to streamline the proceedings, making the eventual trial quicker. It is noteworthy that the pre-trial judge does not conduct the main trial.

There are instances where parties exploit the pre-trial process by feigning cooperation—requesting extension of time or engaging in drawn-out negotiations—not with the aim of resolution, but rather to intentionally delay the commencement of trial.

 The Offer to Settle

In the course of proceedings before the Court, offers for settlement may be made by a party for the consideration of the other party. Court-connected alternative dispute resolution may also be an option for the parties to explore to expedite the resolution of their disputes.

Offers to settle cases encourage early negotiations and resolutions outside of court and if an offer is accepted, the case may be concluded without a trial. In practice, the parties may agree to resolve the dispute amicably, in which case the agreed terms are reduced into writing, signed by the parties, and filed in court. To conclusively end the case, the Court must adopt the filed terms of settlement as consent judgement and strike out the case as settled.

The courts in Ghana are usually supportive of parties settling their disputes outside the courtroom. But this goodwill can be exploited when a litigant pretends to pursue the settlement, simply to buy time and stall the progress of the case. Another common tactic is the use of poorly drafted settlement terms. Bad drafting, especially of key clauses, can act as a Trojan horse which conceal potential new disputes that surface during the execution of the consent judgment. Parties must ensure that the terms of settlement  reflect exactly what the parties intended.

Conclusion

It is ironic that the very rules designed to expedite litigation can, in the hands of mischievous litigants, be manipulated to achieve the opposite effect. Lawyers and litigants alike must remain vigilant to such tactics and take proactive measures to prevent avoidable delays along the litigation express way.