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Arbitral proceedings

Starting an arbitration proceeding
What is needed to commence arbitration?

Section 22 of the Arbitration Act provides that unless the parties agree otherwise, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request for the dispute to be referred to arbitration is received by the respondent. 

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

Not unless dictated by the arbitration agreement. 

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

No. The parties may agree on the procedural rules to be used. 

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

There is no express exclusion of dissenting opinions. Section 32 of the Arbitration Act requires only that the tribunal’s award be signed by the majority of all arbitrators.

Judicial assistance
Can local courts intervene in proceedings?

Yes, but the extent of intervention is limited by Section 10 the Arbitration Act. 

Can the local courts assist in choosing arbitrators?

No. 

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

Section 26 of the Arbitration Act empowers the arbitral tribunal to continue with its proceedings and make an award on the evidence  before it. It cannot issue subpoenas to third parties.

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

Arbitration law in Kenya does not specifically provide for any instances in which a third party may be bound by an arbitration agreement or award.

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

The default language is English and the default location is wherever the parties and arbitrator are located or find most convenient. 

Gathering evidence
How is evidence obtained by the tribunal?

Section 25 of the Arbitration Act states that, subject to any agreement to the contrary by the parties, the tribunal shall decide whether to hold an oral hearing for the presentation of evidence or whether the proceedings shall be conducted on the basis of documents.

What kinds of evidence are acceptable?

The tribunal has the power to dictate the form of evidence, request the High Court’s assistance in collecting evidence and weigh the admissibility of the evidence. 

Confidentiality
Is confidentiality ensured?

In the absence of agreement between the parties to the contrary, confidentiality is ensured.

Can information in arbitral proceedings be disclosed in subsequent proceedings?

No.

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

Arbitration is predominantly conducted under the rules of the Chartered Institute of Arbitrators - Kenya Chapter, which contains strict codes of conduct for arbitrators. However, the Nairobi Centre for International Arbitration is in the process of coming up with a Code of Conduct for Arbitrators.  

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