Arbitration

Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

The Arbitration Act 1995 provides that an enforceable arbitration agreement in Kenya must be in writing either in the form of an arbitration clause within a contract or in the form of a separate agreement.

An arbitration agreement is considered to be in writing where it is contained in a document signed by the parties or in an exchange of letters, telex, telegram, facsimile, electronic mail or any other means of telecommunication that provide a record of the agreement or where through exchange of court pleadings one party alleges the existence of an arbitration agreement that the other party does not refute.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

Arbitration in Kenya affords parties the utmost autonomy in determining the rules and procedures to be followed by the arbitral tribunal in the conduct of arbitration proceedings. Nevertheless, in the absence of such rules and procedures, the Arbitration Act provides for default rules and procedures to which parties must adhere. No matter the rules or procedures used, the Arbitration Act requires that during the conduct of arbitral proceedings, each party must be treated equally and afforded a fair and reasonable opportunity to present their case. Parties are also under an obligation to do all things necessary for the proper and expeditious conduct of the arbitral proceedings.

Award

When and in what form must the award be delivered?

A final award is issued at the end of proceedings. It determines all issues in the arbitration or those issues that remained outstanding following earlier awards dealing with only some of the issues in the arbitration. It must be made in writing, signed, dated and the juridical seat of arbitration indicated. In arbitral proceedings with more than one arbitrator, the signatures of the majority of all the arbitrators shall be sufficient so long as the reasons for any omitted signature are stated.

The arbitral award should state the reasons upon which it is based unless it is a consent award or the parties have agreed to do without the reasons. If it is a partial award, it should specify the issues addressed in it.

Appeal

On what grounds can an award be appealed to the court?

An award can be appealed to the High Court on questions of law only if the parties have agreed to have a right of appeal prior to the delivery of an arbitral award. In the absence of such an agreement, the award shall be final and binding.

An award may, however, be set aside on limited grounds that include:

  • a party to the arbitration agreement was under some incapacity;
  • the arbitration agreement was not valid under the laws of Kenya or the law to which it was subjected by the parties;
  • lack of proper notice of the appointment of an arbitrator or arbitral proceedings or a party was unable to present his or her case;
  • the award deals with a dispute not contemplated by or not falling within the terms of reference;
  • the composition of the arbitral tribunal or procedure was not in accordance with the parties’ agreement unless that agreement was in conflict with the Arbitration Act, to which the parties cannot derogate, or failing which agreement was not in accordinance with the act; or
  • the award was induced by fraud, bribery, undue influence or corruption.
Enforcement

What procedures exist for enforcement of foreign and domestic awards?

A domestic arbitral award shall be recognised as binding and upon application to the High Court shall be enforceable in Kenya subject to relevant provisions of the Arbitration Act 1995. An international arbitral award shall be recognised as binding and enforceable in Kenya in accordance with the provisions of the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) or any other convention to which Kenya is a signatory relating to arbitral awards.

Unless the High Court orders otherwise, the party relying on a domestic or foreign arbitral award or applying for its enforcement will have to furnish the original arbitral award or a duly certified copy of it as well as the original arbitration agreement or a duly certified copy of it to the High Court prior to enforcement. The arbitral award and the arbitration agreement must be in English and if not, the party ought to furnish the High Court with a duly certified translation in the English language.