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What legal requirements are there for recognition of an award? Must reasons be given for the award? Does the award need to be reviewed by any other body?
The law does not require that an award be reviewed by any other body. An award must contain reasons (unless otherwise agreed by the parties or if the award is a consent award under Section 31 of the Arbitration Act 1995). Further, to be valid the award must be in writing, signed by all members of the tribunal and dated, and the juridical seat must be stated.
Timeframe for delivery
Are there any time limits on delivery of the award?
No, other than the limits that may be imposed by the parties in the arbitration agreement, which may be extended with the consent of the parties.
Does the law impose limits on the available remedies? Are some remedies not enforceable by the court?
The Arbitration Act imposes no limits on the types of remedy that an arbitral tribunal may award – party autonomy remains paramount in this regard. Therefore, it is open to tribunals to award both traditional remedies and innovative ones, provided that public policy considerations are taken into account and the remedies are in line with Kenyan law.
What interim measures are available? Will local courts issue interim measures pending constitution of the tribunal?
No limits are placed on the interim protection measures available to parties to an arbitration. The same interim measures are available as in litigation. Section 7 of the act states that interim measures will be issued by national courts pending constitution of the arbitral tribunal.
Can interest be awarded?
Yes, interest may be awarded under Section 32C of the act unless otherwise agreed by the parties.
At what rate?
The interest rate is specified in the award, but must be within the bounds of the law applicable to the substance of the dispute (Section 32C of the act), unless otherwise agreed by the parties.
Is the award final and binding?
Yes, the award is final and binding. There are few grounds on which an award may be appealed; findings of fact may not be appealed.
What if there are any mistakes?
In the event that an award contains typographical or clerical errors, or an ambiguity that requires clarification, a party may, within 30 days of receipt of the award (or another period specified by the parties), apply to the tribunal to correct or clarify the error on notice in writing to the other party (Section 34 of the act). The tribunal may also, on its own initiative and within the same period, make the correction.
Can the parties exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
The right of appeal may, by consent, be excluded by parties agreeing to be bound by the terms of the award. In regard to other recourse, provided in doing so the parties do not fall afoul of public policy considerations, the parties can exclude other remedies.
What is the procedure for challenging awards?
An application must be lodged with the High Court within three months of the date of receipt of the award by the challenging party.
On what grounds can parties appeal an award?
The grounds for setting aside or challenging an award are limited and are set out in Section 35 of the Arbitration Act. These include:
- a finding by the High Court that the award is against Kenyan public policy;
- a finding that the subject matter of the dispute is incapable of settlement by arbitration under national law; or
- the appellant providing proof that the award was procured or induced by corrupt means, bribery, undue influence or fraud.
What steps can be taken to enforce the award if there is a failure to comply?
The award may be filed with the High Court under a miscellaneous application, which is served on the respondent, who then has the opportunity to defend the enforcement proceedings.
Can awards be enforced in local courts?
Yes, awards can be enforced in the national courts – Sections 36 and 37 of the Arbitration Act give equal treatment to domestic and foreign awards in their recognition and enforcement.
How enforceable is the award internationally?
Kenya is a signatory to the New York Convention, and therefore any award delivered or published within Kenyan jurisdiction is enforceable internationally, provided that it does not fall foul of the law in the jurisdiction where enforcement is sought.
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Both the New York Convention and the International Centre for Settlement of Investment Disputes Convention allow the defence of state immunity or sovereignty. Therefore, it is always possible that this defence may be raised at the enforcement stage.
Are there any other bases on which an award may be challenged, and if so, by what?
Other than on the grounds contained in Section 5 of the Arbitration Act, no others are available.
How enforceable are foreign arbitral awards in your jurisdiction?
As Kenya is a signatory to the New York Convention, enforceability should not be an issue, although public policy considerations will come into play. In Tanzania National Roads Agency v Kundan Singh Construction Limited [2013 eKLR] the failure of the arbitral tribunal to apply Tanzanian law as the governing law of the contract (English law was applied instead, against the express provisions of the contract between the parties) led the Kenyan High Court to refuse to enforce the award based on public policy considerations.
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
Section 37(1)(a)(vi) of the Arbitration Act is unequivocal in this regard, clearly stating that an award set-aside or suspended by a court of the state where or under the law of which the arbitral award was made will not be enforced by the High Court.
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