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Legal framework

National arbitration laws
What legislation applies to arbitration in your jurisdiction?

The Arbitration Act 1995, as amended in 2010, applies to arbitration in Kenya.

Mandatory laws
Are there any mandatory laws?

No.

New York Convention
Is your country a signatory to the New York Convention? If so, what is the date of entry into force?

Kenya acceded to the New York Convention on February 10 1989.

Are there any reservations to the general obligations of the convention?

The accession was made with a reciprocity reservation.

Treaties and conventions
What other treaties and conventions in relation to arbitration is your jurisdiction party to?

Kenya has also signed the East African Community Treaty which provides for arbitration as one of the available means of settling disputes (Article 32).

UNCITRAL
Has your jurisdiction adopted the UNCITRAL Model Law?

When the Arbitration Act 1995 initially came into force, it adopted the UNCITRAL Model Law exactly. The 2010 amendments then filled in lacunae in the law by including clauses on arbitrator immunity, the general duty of parties, costs, interest, expenses and the effect of an award.

Reform
Are there any impending plans to reform the arbitration laws in your jurisdiction?

Not at present. 

Arbitration agreements

Validity
What are the validity requirements for an arbitration agreement?

To be valid, an arbitration agreement must meet the requirements set out in Section 4 of the Arbitration Act 1995 (as amended in 2010) – that is, it must be in writing and may form a separate agreement or be included as a clause within a contract. It may be incorporated by reference to another document, may be contained in an exchange of letters, telex, telegram, facsimile, email or other means of telecommunications which provide a record of the agreement, or may be an exchange of pleadings where there is no contravention of the existence of an arbitration agreement.

Enforcement of agreements
How are arbitration agreements enforced in your jurisdiction? What is the attitude of the national courts towards arbitration agreements?

The national courts’ attitude has become increasingly positive over the last seven to eight years. Arbitration agreements are enforced through the courts. Awards are filed under a miscellaneous application for consideration by the Commercial Division of the High Court.

Consolidation
Can an arbitral tribunal with its seat in your jurisdiction consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

The consolidation of separate arbitral proceedings is supported in Kenya, but only with the parties’ consent.

Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?

The substantive law of the contract is to be determined by the parties during the negotiations. If the parties fail to do so, Section 29(3-5) of the act sets out guidelines for how an arbitrator should determine the substantive law of the contract.  

Separability
Are there any provisions on the separability of arbitration agreements?

The doctrine of separability is well rooted in Kenyan law and has been codified in Section 17 of the act.

Multiparty agreements
Are multiparty agreements recognised?

Yes, multiparty agreements are recognised in Kenya. 

Arbitral tribunal

Criteria for arbitrators
Are there any restrictions?

Parties are given broad discretion to choose an arbitrator. 

Contractual stipulations
What can be stipulated about the tribunal in the agreement?

Kenyan law imposes no restrictions on what may be included in an arbitration agreement. However, the provisions of the agreement must not breach public policy requirements. 

Default requirements
Are there any default legal requirements as to the selection of a tribunal - for example, concerning the number of arbitrators or their characteristics?

Parties are free to determine the number of arbitrators and their characteristics; if they fail to set the number of arbitrators, under Section 11 of the Arbitration Act a sole arbitrator will resolve the dispute. 

Challenging the appointment of an arbitrator
Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for this?

Section 14 of the Arbitration Act sets out the procedure for challenging an arbitrator, while Section 13 lays down the grounds for a challenge, including disqualification. Section 17 implements the competence-competence principle into Kenyan jurisprudence. 

Jurisdictional objections
How should an objection to jurisdiction be raised?

According to Section 14, the parties are free to agree on the challenge procedure. If no procedure is agreed, an objection to jurisdiction must be raised through a written statement to the tribunal within 15 days of a party becoming aware of circumstances that fall within Section 13(3). The arbitrator can then decide whether to withdraw or hear the challenge. However, Section 17(2) makes clear that a plea that a tribunal lacks jurisdiction must be made no later than the filing of a statement of defence; however, Section 17(4) gives an arbitrator the discretion to allow a plea that may be filed at any time after the filing of the statement of defence if the plea is justified.

Replacement of an arbitrator
Why and how can an arbitrator be replaced?

Section 15 gives the parties power to agree to terminate an arbitrator’s mandate, in which case the parties are free to appoint a new arbitrator. The section also states that an arbitrator may withdraw from a reference; in addition, the mandate of an arbitrator who is unable to perform his or her functions properly or with reasonable speed will be terminated. Should a dispute arise in relation to any of these grounds, any party may apply to court for final determination of the issue. Section 16 applies to the appointment of a new arbitrator where the procedure initially used to appoint the original arbitrator applies.

Powers and obligations
What powers and obligations do arbitrators have?

Sections 18, 20, 26, 27 and 28 of the act grant an arbitrator a variety of powers. In addition, the parties are free to grant the tribunal any additional powers, and any rules elected by the parties will grant an arbitrator further powers, provided that these do not conflict with the statute.

Liability of arbitrators
Are arbitrators immune from liability?

Section 16B of the act grants an arbitrator immunity from liability for all acts carried out in good faith in the discharge or purported discharge of his or her duties as an arbitrator.

Communicating with the tribunal
How do the parties communicate with the tribunal?

Section 9 of the act allows for written communications to be in hard copy, facsimile or electronic transmissions. In light of the statutory position, communications with the tribunal are to be agreed, and direct communication by a party in the absence of the other is discouraged, and in fact prohibited except in an emergency. 

Reaching decisions
Is unanimous agreement of the tribunal required? If there is disagreement, does the will of the majority suffice? What are the implications of this?

Section 30 of the act makes clear that the will of the majority, in proceedings with more than one arbitrator, will suffice. However, where matters of procedure are in question, the chair of a tribunal may decide that authority has been obtained from the other members of the tribunal or the parties.

Arbitrability
Are there any disputes incapable of being referred to arbitration?

In practice, arbitration is not applicable to criminal, land or family matters in Kenya. However, in respect of family matters there is growing recognition that arbitration may be a useful tool where parties are unable to reach agreement on certain aspects of the dispute when seeking a mediated settlement. No statutory law limits the use of arbitration to a particular subject matter, but it is understood, by reference to Section 159 of the Constitution, that the ends of justice must be met in promoting alternative methods of dispute resolution, including arbitration. Justice must:

  • not be delayed;
  • apply equally to all persons regardless of status;
  • be administered without due regard for procedural technicalities; and
  • promote and protect the purpose and principles of the Constitution.

The Constitution gives carte blanche to the application of arbitration and alternative dispute resolution (ADR) methods to any given situation, and the courts have sought to apply ADR in the criminal arena in some cases. However, these are to be regarded as aberrations, as Section 159(3) makes clear that the outcome of applying arbitration and ADR in such situations must not be repugnant to justice and morality. 

Can the arbitrability of a dispute be challenged?

The act remains silent on this issue. However, in Heather-Hayes v AMREF, the arbitrability of an employment contract was challenged before the Industrial Court.

Jurisdiction and competence-competence
Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunal’s jurisdiction and competence?

Section 17 of the Arbitration Act implements the principle of competence-competence in Kenyan law. The courts may determine issues relating to a tribunal’s jurisdiction only if, when jurisdiction is challenged and ruled on by the tribunal under Section 14, the losing party applies to the High Court for final determination of the issue. The court can either uphold the ruling or uphold the challenge and remove the arbitrator.

Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

Section 22 of the Arbitration Act allows for the will of the parties to prevail. Thus, in practice, the terms of the arbitration agreement or clause come into play, with the first step being the appointment of an arbitrator. Where there is no consensus, an arbitration commences on the date that the respondent receives a request to refer the matter to arbitration.

Limitation periods
Are there any limitation periods for the commencement of arbitration?

No. If any limitation periods apply, they will be contained in the arbitration agreement or clause. 

Procedural rules
Are there any procedural rules that arbitrators must follow?

The act does not require arbitrators to follow a specific set of procedural rules. The parties and the arbitrator can agree the rules to use, and the arbitration clause or agreement may impose a set of procedural rules. However, where the parties cannot agree on the rules, under Section 20 of the act the arbitrator becomes the master of procedure. The following sections of the Arbitration Act set out the procedure that must be followed in the absence of agreement to the contrary by the parties:

  • Section 24 – submission of the statement of claim and defence;
  • Section 25 – hearings and written representation;
  • Section 26 – default of a party, failure to comply and peremptory orders; and
  • Section 27 – tribunal-appointed experts.

Parties are also free to adopt the rules of any institution as they see fit, or even to create their own. Finally, Order 46 of the Civil Procedure Rules sets out rules that must be complied with where a reference is conducted under the court’s guidance.

Dissenting arbitrators
Are dissenting opinions permitted under the law of your jurisdiction?

Yes, dissenting opinions are permitted.

Judicial assistance
Can local courts intervene in proceedings?

According to Section 10, national courts may intervene in arbitral proceedings only as prescribed by the Arbitration Act. The scope of intervention by courts is severely limited by the act.

Can the local courts assist in choosing arbitrators?

Yes, but only if called on to do so by a party to the arbitral proceedings under Section 12 of the act.

What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration? Can the courts compel parties to arbitrate? Can they issue subpoenas to third parties?

Under Section 28 of the act, the courts may issue a summons to require a third party to attend the tribunal. However, the act does not give the courts the power to compel parties to arbitrate – this would be contrary to the consensual nature of arbitration. In the event that a respondent fails to participate in an arbitration after it has submitted to its jurisdiction, the tribunal can issue peremptory orders and its powers of persuasion to get the respondent to participate. If this fails, the tribunal can proceed with the hearing and render an award.

Third parties
In what instances can third parties be bound by an arbitration agreement or award?

National law is silent on this point and prevailing practice makes no allowance for the joinder of third parties. However, recent Court of Appeal jurisprudence has brought uncertainty to the issue of joining unrelated parties. This has raised concerns for practitioners as if the issue returns to the same court, the correct principles may be applied.

Default language and seat
Unless agreed by the parties, what is the default language and location for arbitrations?

The act imposes neither a default language nor venue for arbitrations. In the absence of an agreement between the parties, the tribunal can rule on the language and venue to be used. 

Gathering evidence
How is evidence obtained by the tribunal?

The tribunal can gather evidence through submission of pertinent documentation by the parties through either:

  • the statements of case procedure, whereby documents are annexed to pleadings; or
  • full discovery and disclosure procedures.

The production of documents can be compelled either by the tribunal directly or through court assistance. The tribunal can also make site visits to gather further evidence.

What kinds of evidence are acceptable?

There are no limits to the kinds of evidence that are acceptable, bearing in mind that where parties are unable to agree on the limits, if any, it is for the tribunal to decide. Section 23(3) states that a tribunal has “the power to determine the admissibility, relevance, materiality and weight of any evidence and to determine at what point an argument or submission in respect of any matter has been fairly and adequately put or made” where the parties have failed to agree. The Evidence Act does not apply to arbitrations, although parties may agree to its application.

Confidentiality
Is confidentiality ensured?

Arbitral proceedings are confidential in Kenya and this is maintained to the highest possible standard.   

Can information in arbitral proceedings be disclosed in subsequent proceedings?

No – arbitral proceedings remain confidential unless the parties agree otherwise. 

Ethical codes
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?

Counsel are bound by the Advocates Act in terms of representing parties within the realm of arbitration. Further, benchmark practices are imposed by, among other things, the Chartered Institute Code of Professional Conduct and Ethics and the International Bar Association Code on Representation of Parties in International Arbitration.

Costs

Estimation & allocation
How are the costs of arbitration proceedings estimated and allocated?

The arbitral tribunal charges on an hourly basis and maintains a strict schedule through the use of timesheets. Counsel representing the parties are free to agree with clients on the mode of charging costs.

Security for costs
Can the national court or tribunal order security for costs under the law in your jurisdiction?

Yes. Both the national courts and arbitral tribunals are empowered to order security for costs.

The award

Requirements
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.

Remedies
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.  

Interest
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.

Finality
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.

Appeal
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. 

Enforcement
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.  

Third-party funding

Rules and restrictions
Are there rules or restrictions on third-party funders?

The concept of third-party funding has yet to take off in Kenya. As such, no rules or restrictions exist at present.

Class-action or group arbitration

Concept
Is there a concept in your jurisdiction providing for class-action arbitration or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?

This concept does not exist in Kenya.  

Hot topics

Emerging trends
Are there any hot topics or trends emerging in arbitration in your jurisdiction?

The Nairobi Centre for International Arbitration began operations in December 2015 with the launch of its Rules on Mediation and Arbitration. The NCIA aims to establish itself as a powerhouse in the region, attracting a variety of commercial disputes.