Litigation 2026 Comparisons

Kenya’s legal system is based on English common law which is founded on the Constitution, legal precedents established by courts and statutes as primary sources of law.

The Kenyan judicial system follows an adversarial model for resolving cases where the court acts as an impartial arbiter between opposing parties who present evidence and arguments, and challenge each other’s positions.

The legal process is generally conducted through a combination of written submissions and oral arguments. Trials feature oral evidence via witness testimony and cross-examination. In some instances, such as constitutional matters, this viva voce hearing style is waived, and matters proceed by way of affidavit evidence.

Judges typically allow litigants to prepare written submissions and then present oral arguments on the same issue. However, in less complex disputes, a judge has the discretion to determine a matter based on written submissions alone.

Kenya’s court system is a unified national judiciary organised hierarchically into superior and subordinate courts.

The Supreme Court is the apex and final appellate court, which also exercises exclusive original jurisdiction over presidential election disputes. Beneath it is the Court of Appeal, which hears appeals from the High Court.

The High Court enjoys unlimited original jurisdiction in criminal and civil matters and exercises supervisory authority over subordinate courts. It also hears appeals from the magistrate’s courts and tribunals.

The Constitution establishes specialised superior courts with the status of the High Court, namely the Employment and Labour Relations Court and the Environment and Land Court, which deal exclusively with disputes in their respective areas. At the lower tier are the subordinate courts, primarily the magistrates’ courts and tribunals.

The subordinate courts also include specialised tribunals such as the Kadhis’ Courts, with jurisdiction over Muslim personal law matters, the Courts Martial, Children’s Courts and the newly established Small Claims Court.

The typical timeframe from the commencement of proceedings to trial varies depending on the nature and complexity of the matter; however, reforms such as Active Case Management guidelines have been introduced to reduce delays and promote efficiency.

Court proceedings and filings in Kenya are open to the public, as the Constitution of Kenya guarantees every person the right to a fair and public hearing before a court or another independent and impartial body.

However, there are established procedures for protecting certain court filings and proceedings from public disclosure under specific circumstances, eg, if it is necessary to protect witnesses or vulnerable persons, morality, public order or national security. Procedurally, the court has the discretion to direct that a hearing be conducted in chambers rather than in open court.

Legal representatives are qualified to act as advocates only if they have been formally admitted as an Advocate of the High Court of Kenya, their name is currently on the Roll of Advocates and they have a valid practising certificate in force. Advocates are considered officers of the court and are subject to its jurisdiction.

Foreign lawyers are permitted to conduct cases in Kenyan courts, but their participation is regulated and subject to specific conditions. To be eligible, the individual must be a practitioner entitled to appear before the superior courts of a Commonwealth country and must not be disqualified or suspended under Kenyan law.

Foreign advocates must be instructed by, and appear in court with, a qualified Kenyan advocate. Furthermore, they are not entitled to sign or file any court pleadings themselves and must pay a prescribed admission fee to the Registrar before they can practise.

Kenya does not have an express legal framework regulating third-party funding, nor is there a specific statutory prohibition against it. Historically, Kenyan courts have been guided by the common law doctrines of maintenance and champerty which barred third parties with no legitimate interest in a dispute from funding litigation.

Given the current global trends, it is arguable that Kenya is ready to embrace the recognition of third-party litigation funding. Law makers should consider amending the existing legal framework to expressly allow third-party funding while also introducing clear statutory provisions outlining the mandatory requirements for such arrangement to be valid and enforceable.

The proposed mandatory requirements for enforceable third-party funding arrangements in Kenya could include the following.

• The funding arrangement must be in writing.
• The funder must be a person or entity as set out in law.
• The sum payable by the litigant should consist of the actual costs incurred in the proceedings along with an agreed return to the funder that must be reasonable.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

See 2.1 Third-Party Litigation Funding.

Advocates are not permitted to charge contingency fees. The law on this point is set out in Section 46(c) of the Advocates Act (Cap. 16), which expressly prohibits an advocate from entering into any agreement to prosecute or defend a case on terms that payment will only be made if the case succeeds.

Any arrangement tying an advocate’s remuneration directly to the success of litigation is void and unenforceable.

See 2.1 Third-Party Litigation Funding.

Ideally, there are no court-imposed rules governing pre-action conduct. However, there are clear expectations and statutory requirements that guide how parties should conduct themselves before filing a suit.

Ordinarily, it is standard practice for a claimant to issue a formal demand letter, particularly in commercial and debt recovery matters. This is to provide the prospective defendant an opportunity to respond or settle the dispute at the earliest possible stage, ensuring that litigation is used only as a last resort.

While failure to issue a demand letter does not automatically bar the claimant from instituting proceedings, it may prevent the claimant from recovering costs against the defendant, even if the claim is ultimately successful.

The statutes of limitations applicable to civil suits prescribe the timeframes within which different types of claims must be instituted, with the aim of ensuring legal certainty and preventing indefinite exposure to litigation.

For contractual claims, the limitation period is generally six years from the date the cause of action accrues (Section 4(1)(a) of Limitation of Actions Act). Actions to recover land based on adverse possession must be brought within 12 years (Section 7).

Tort claims against the government or a public authority must generally be instituted within 12 months from the date on which the cause of action arises; where the claim is contractual against a public body, the limitation period is three years under Sections 3(1) and (2) of the Public Authorities Limitation Act.

The limitation period is usually triggered by the type of claim being asserted and the date on which the cause of action accrues. Consequently, an action must be instituted within the relevant limitation period, failing which the defendant may raise the defence of laches, effectively barring the claim.

The court considers the area where the defendant actually and voluntarily resides, carries on business, or personally works for gain.

Jurisdictional requirements also differ between courts in terms of pecuniary and subject-matter limits. Civil matters involving sums in excess of KES20 million are typically heard by the High Court.

Subordinate courts have the following pecuniary limits:

• a chief magistrate may hear cases not exceeding KES20 million;
• a senior principal magistrate up to KES15 million;
• a principal magistrate up to KES10 million;
• a senior resident magistrate up to KES7 million; and
• a resident magistrate up to KES5 million.

Specialised courts have their own jurisdictional limits. The Employment and Labour Relations Court hears disputes where the employee’s gross monthly salary exceeds KES80,000, while claims below this threshold are handled by the Magistrates’ Court. The Small Claims Court has a pecuniary jurisdiction of up to KES1 million, as set out in Section 12(3) of the Small Claims Court Act.

Civil suits in Kenya may be instituted either by way of a Plaint, a Statement of Claim, a Petition or Originating Summons. These documents are accompanied by a verifying affidavit or a supporting affidavit and evidence in support which is produced through a witness statement.

Parties are allowed to amend their pleadings after filing without leave of court before the pleadings are closed and this is typically done within 14 days. Once pleadings close, parties must seek leave of court in order to amend the pleadings.

Once a suit has been filed and the requisite fees are paid, the plaintiff takes out summons which are issued to the defendant to appear in court within a specified period. The summons shall be sealed by the court within 30 days of filing the suit.

Service of summons is essentially the responsibility of the plaintiff and must be served by an authorised court process server, an advocate, a magistrate, an officer under the Police Act or Administrative Police Act or a licensed courier.

Service of summons outside Kenya is allowed where the person sued is a necessary or proper party to the suit. A party seeking to serve summons outside Kenya must seek leave of court by filing an application in the High Court.

Once leave is granted to serve summons in a foreign country, the notice shall be sealed with the seal of the High Court for use outside Kenya and then forwarded by the Registrar to the Foreign Affairs Cabinet Secretary, together with a copy translated into the language of the country in which service is to be effected and a request for the further transmission of said copy through diplomatic channels to the government of the country in which leave to serve the summons has been granted.

In such instances of failure to respond, the plaintiff may file a request for a judgment in default of appearance against the defendant. For the court to enter a judgment in default, the plaintiff must satisfy the court that the defendant was properly served and failed to enter appearance. If the claim is liquidated, the court will check the return of service and enter a final judgment.

Where the claim is unliquidated, the court shall set the matter down for hearing where the plaintiff is required to adduce evidence to help the court reach an appropriate amount for compensation.

According to Order 1 Rule 8 of the Civil Procedure Rules, where there are numerous persons who have a similar interest in any proceedings against the same defendant, the proceedings may be commenced by or against any one of them as representing all of them.

For one to file a representative suit, one must demonstrate a common interest. Participation in representative suits is on an opt-in basis, in that any person on whose behalf the representative suit is instituted is allowed to apply to the court to be made a party.

There is no mandatory requirement in Kenya for advocates to provide clients with a cost estimate for a potential litigation. Costs associated with litigation include legal costs or damages awarded to the winning party at the end of the litigation.

Such costs are difficult to estimate from the onset as they are discretionary and differ on a case-by-case basis as may be awarded by the court. Nonetheless, an estimate can be given for the filing fees and the legal fees chargeable by the lawyer representing the party.

Interim applications allow courts to control proceedings, preserve the subject matter of disputes and prevent injustice before trial.

The most common interim reliefs are injunctions, stays of proceedings, orders for preservation of property, freezing orders (Mareva injunctions) and orders compelling disclosure of documents. The guiding principles for interlocutory injunctions are as follows:

• demonstration of a prima facie case with a probability of success;
• proof of irreparable harm not compensable in damages; and
• balance of convenience favouring the applicant.

Such remedies ensure that constitutional rights are protected pending full hearings. The practical effect is that interim applications are not mere procedural tools but substantive instruments of justice, often shaping the trajectory of litigation.

A party can apply for summary judgment in claims for liquidated sums, recoveries of land and enforceable contracts. In such cases, the applicant must demonstrate that the defendant has no defence worth going to trial.

A second mechanism is striking out of pleadings where they are scandalous, frivolous, vexatious, may prejudice or delay the fair trial of the action, or are otherwise an abuse of court process.

The third tool is the preliminary objection, which must raise a pure point of law, such as jurisdiction or limitation of actions, and does not depend on the ascertainment of facts. If successful, it can dispose of an entire case at the threshold stage.

A fourth mechanism is judgment in default of appearance, where a defendant, after being served with summons, fails to enter appearance within the stipulated time, the plaintiff may apply for judgment in default.

Finally, Kenyan courts also recognise judgment on admission under Order 13 Rule 2 of the Civil Procedure Rules. This mechanism allows the court to enter judgment at any stage of proceedings where a party has made clear and unequivocal admissions of fact, either in pleadings or otherwise.

A summary judgment allows a case to be concluded without a full trial under Order 36 of the Civil Procedure Rules. This applies where the plaintiff shows that the defendant has no real defence, especially in liquidated claims or recovery of land.

Another mechanism is the motion to strike out pleadings under Order 2 Rule 15. This allows the court to remove pleadings that are frivolous, scandalous, vexatious, or an abuse of process.

Courts may also dismiss cases through dismissal for want of prosecution under Order 17 Rule 2, where no action is taken in a case for at least one year. Courts have interpreted this position, stating that dismissal depends on whether or not the delay is inordinate, inexcusable, and prejudicial to the defendant.

Finally, courts may dispose of suits on grounds that a claim is premature where statutory or contractual pre-conditions have not been met. For example, where parties are required by law to first pursue remedies before a specialised tribunal, a claim filed in the High Court may be struck out for failure to exhaust such remedies.

Parties who are not originally named as plaintiffs or defendants may join in ongoing litigation through joinder of parties, which can occur either at the time the claim is filed or subsequently, by way of a formal application supported by an affidavit.

First, the applicant must demonstrate a clearly identifiable personal interest in the matter. Second, the court must consider the prejudice that the applicant is likely to suffer in the event of non-joinder. Third, the applicant must set out the case they intend to present and show its relevance to the proceedings.

A defendant can apply for an order requiring the plaintiff to provide security for the defendant’s costs of the proceedings. Kenyan law safeguards defendants against frivolous litigation through security for costs under Order 26 of the Civil Procedure Rules.

Courts often require defendants to provide evidence of the plaintiff’s inability to meet costs or risk of flight from the jurisdiction being a bona fide concern and not mere speculation. In some cases, the amount ordered may be reduced to an affordable sum to allow the case to proceed.

Section 27 of the Civil Procedure Act states that costs follow the event unless the court directs otherwise. This means that the losing party in an interim application generally bears the costs.

Kenyan courts retain wide discretion and often order that costs of interim applications be “in the cause” meaning that the issue of costs will be determined with the final outcome of the case. This approach reflects judicial pragmatism: interim decisions are provisional, and their fairness is best assessed alongside the final outcome.

The timeframe for hearing and determining applications in Kenya varies significantly. Routine applications may take weeks or months to be listed due to court backlogs, while urgent matters can be certified as such and dealt with expeditiously.

A party can apply to have its application certified as urgent and dealt with on a priority basis. An applicant must demonstrate imminent harm or prejudice that cannot be compensated later. Once certified, urgent applications may be heard ex parte on the same day, with interim orders being issued.

The general approach to discovery in Kenya is that parties are under an obligation to disclose documents that are in their possession or control which are relevant to the suit. It includes both the filing of a list of documents and the exchange of witness statements.

If a party believes that the opposing party has withheld material documents, it may apply to the court for an order of discovery, inspection or production of such documents. The court retains discretion to limit the scope of discovery to prevent abuse, reduce unnecessary expense, and ensure proportionality to the matters in dispute.

The Civil Procedure Rules empower the court, either on its own motion or upon the application of a party, to issue summons to any person requiring their attendance to give evidence or to produce documents that are relevant to the matters in dispute.

Non-parties may also be ordered to make discovery where it is shown that they have possession or control of material evidence. Failure by a third party to comply with such summons or orders may attract sanctions, including contempt proceedings.

The general approach to discovery in Kenya is that the parties are required to file and exchange lists of all documents in their possession or control that are necessary and relevant to the issues in dispute, together with copies of such documents.

If any party believes that the opposing party is in possession of documents material to the adjudication of the suit, such party may file an application to the court for an order compelling discovery, which the court has discretion to allow or disallow. Upon the court allowing such an application, the party is obligated to produce the documents.

There are no alternatives to discovery mechanisms.

Kenyan law recognises several classes of privilege that protect certain communications from disclosure in legal proceedings. The most prominent is attorney–client privilege which prohibits an advocate from disclosing communications made by a client during their professional engagement, or the contents of any advice given, without the client’s consent.

It does not, however, extend to communications made in furtherance of an illegal purpose, or to facts showing the commission of a crime or fraud.

In addition, Kenyan law also recognises privilege against self-incrimination, public interest privilege and marital privilege where communications between spouses made during marriage are generally protected.

For a party to be compelled by a court to disclose certain documents in Kenya, the legal threshold is that of relevance and materiality to the issues in dispute must be met. Only documents necessary for the fair adjudication of the case are subject to disclosure.

A party may resist disclosure on grounds such as legal privilege, public interest immunity, or where the documents are not in their possession, custody, power, or control.

The court retains discretion to limit or refuse disclosure where production would be oppressive, disproportionate, or otherwise unnecessary for the resolution of the matter.

Interlocutory injunctions are commonly used to maintain the status quo until the dispute is resolved, while ex parte injunctions may be granted urgently to prevent immediate harm.

On the other hand, permanent injunctions follow a full hearing while mandatory injunctions requiring a party to act rather than refrain from acting, are granted only in exceptional circumstances and may be granted either as interim relief or after full trial.

Specialised injunctive orders such as freezing (Mareva) injunctions are issued by courts to prevent a party from dissipating assets, anti-suit injunctions to restrain proceedings in other jurisdictions that are vexatious or oppressive, and quia timet injunctions to protect against harm that has not yet occurred, particularly in intellectual property, environmental, or contractual contexts.

Urgent injunctive relief can be obtained on extremely short notice where circumstances so demand. Where the matter is extremely urgent, an applicant may move the court ex parte under a certificate of urgency. The application is normally placed before a duty judge of the court for immediate directions.

In addition to that, the judiciary has established an out-of-hours duty judge system (commonly known as the “duty judge” or “vacation judge” arrangement). During court vacations, weekends, or public holidays, a designated judge remains on call to handle urgent matters, including injunctions.

Injunctive relief can be granted on an ex parte basis in Kenya, but only in urgent and exceptional circumstances where giving notice to the respondent would undermine the very purpose of the order.

Typical scenarios include cases where there is a risk that assets may be dissipated, property destroyed, or other actions taken that would render the injunction ineffective if the respondent were informed in advance.

Ex parte injunctions are usually temporary in nature. Such orders are granted for a limited period, ordinarily not exceeding 14 days, pending a full hearing on notice to the respondent.

An applicant for an injunction may be held liable for damages if the injunction is later discharged and the respondent can show that it suffered loss as a result of the order. To mitigate this risk, the court often requires the applicant to give security for costs or an undertaking as to damages before granting the injunction. This is particularly common where the injunction is of a type likely to affect commercial interests or prevent access to property or funds.

For ex parte injunctions, the requirement for security is even more significant because the respondent has not had an opportunity to be heard before issuance of the order. The applicant must typically provide a bond or other security to cover potential damages that the respondent might claim if the injunction is later set aside.

Courts have the discretion to grant injunctive relief affecting a respondent’s assets, typically sought through a Mareva or freezing injunction, which may restrain the disposal or transfer of assets worldwide. When considering such applications, courts will examine the applicant’s case carefully, ensuring that there is a genuine risk of asset dissipation and that the order is proportionate.

However, enforcement of such orders against assets located abroad depends on the co-operation of foreign courts, principles of international comity, and whether or not the foreign jurisdiction recognises and enforces Kenyan court orders.

Kenyan courts can grant injunctive relief against third parties, but only in limited and specific circumstances where a third party is involved in facilitating or abetting the primary respondent’s conduct. Ordinarily, such third parties are joined to the proceedings for purposes of dispensing with the application and in order to give them an avenue to make representations in court.

The court’s discretion to bind third parties is exercised carefully, and the applicant must demonstrate that the third party is knowingly or actively implicated in the conduct being restrained.

Failure to comply with the terms of an injunction constitutes contempt of court under Section 5 of the Judicature Act and the Civil Procedure framework. The court typically requires proof that the respondent knowingly or intentionally disobeyed the injunction; accidental or inadvertent breaches are treated differently.

For ex parte injunctions, the respondent may initially be unaware of the order, but once served, they are legally bound to comply. Courts may issue committal orders, coercive fines, or other measures to compel compliance.

Civil trials are adversarial and primarily oral, though preceded by extensive written pleadings. Once pleadings close, the court conducts a pre-trial conference under Order 11 of the Civil Procedure Rules to manage disclosure, witness statements, and expert reports.

At trial, witnesses adopt their filed statements as evidence-in-chief and are examined, cross-examined, and re-examined.

Criminal trials, governed by the Criminal Procedure Code and Article 50 of the Constitution, are conducted entirely orally in open court. The process begins with the reading of the charge and plea, followed by the prosecution’s case, during which witnesses are examined and cross-examined.

After both sides close their cases, parties may make brief oral or written submissions. The court then delivers a reasoned judgment in compliance with Section 169 of the Criminal Procedure Code (CPC), stating its findings and reasons.

Shorter hearings such as those concerning interim motions or interlocutory applications are generally conducted through written submissions supported by affidavits and annexures, though parties may be allowed brief oral highlights if the court deems it necessary. The court then issues a ruling, which may be delivered orally or in writing.

Before complex or substantive trials, the court convenes case management conferences, whose purpose is to streamline proceedings, narrow issues in dispute, and ensure readiness for trial. The court:

• confirms filing and exchange of pleadings, witness statements, expert reports;
• addresses pending interlocutory matters; and
• sets timelines for the hearing.

Once the court is satisfied that all pre-trial steps are complete, it certifies the matter as ready for hearing and allocates trial dates.

Jury trials are not available in civil or criminal cases in Kenya. The Kenyan legal system, inherited from the English common law tradition, requires that all disputes are tried and determined by a judge or magistrate sitting alone who serves as both the arbiter of fact and law.

The general principle is that evidence must be relevant to be admissible. The courts only admit facts that make the existence or non-existence of a material fact in issue more or less probable.

Sections 62 and 63 of the CPC, Cap. 75 of the laws of Kenya, distinguish between oral and documentary evidence, with oral evidence required to be direct, and documents required to be proved by primary evidence – ie, the original document – except where secondary evidence is permitted under Section 68.

The best evidence rule applies, meaning the original document must be produced unless a valid exception exists. Evidence obtained unlawfully may be excluded if its admission would render the trial unfair, reflecting both the statutory provisions and the constitutional guarantees of fair trial.

Under Sections 107 to 109, the burden of proof lies on the party who asserts a fact. In civil cases, the standard is on a balance of probabilities, while in criminal cases it is beyond reasonable doubt.

Hearsay evidence is generally inadmissible unless it falls within the statutory exceptions such as dying declarations, admissions, or statements by persons who cannot be called as witnesses.

Finally, the rules of privilege apply and further limit admissibility. Courts retain discretion to exclude otherwise relevant evidence if admitting it would prejudice a fair trial or contravene the rules of natural justice.

Expert testimony is permitted under Section 48 of the Evidence Act, when a court must form an opinion on a point of foreign law, science, art, handwriting, or identity; the opinions of persons specially skilled in such matters are considered relevant facts.

Parties are allowed to introduce expert testimony to support or clarify technical or specialised issues such as valuation, engineering, accounting, medical or forensic matters. Expert reports are ordinarily filed and exchanged before trial as part of pre-trial disclosure and the expert may be called to testify at trial.

A court may obtain an independent expert opinion where the technical nature of the issues requires professional guidance, particularly in complex or scientific matters. In such cases, the expert acts as a neutral adviser to the court rather than a witness for either party.

The right to a fair and public hearing is not absolute, and courts may limit public access where necessary in instances such as the following.

• Proceedings such as divorce, custody, adoption, and maintenance are typically held in camera to safeguard the privacy and welfare of families and minors.
• Under the Sexual Offences Act, Cap. 63A of the laws of Kenya, courts may exclude the public when hearing cases involving sexual violence, to protect the dignity and privacy of the complainant, especially minors.
• Courts may conduct proceedings privately where open hearings would compromise national security, state secrets, or public safety, in line with Article 50(8) of the Constitution and judicial discretion.
• Cases involving minors in conflict with the law are mandatorily heard in Children’s Courts.
• Protection of witnesses falls under the Witness Protection Act (Cap. 79).

Although proceedings are digitally recorded, transcripts and records are not automatically public. Parties, their advocates, or persons with legitimate interest may apply for certified copies subject to the court’s approval and payment of fees.

The media’s reporting rights are also limited by the sub judice rule and contempt-of-court principles to ensure fairness and prevent interference with ongoing cases.

The level of judicial intervention during hearings or trials depends largely on the nature of the proceedings and the court’s jurisdiction.

During hearings, a judge may intervene to clarify evidence or legal issues, direct parties to focus on relevant matters, or manage time to prevent unnecessary delays. Under the Overriding Objective principle of the Civil Procedure Act (Cap. 21), judges are encouraged to actively facilitate the just, expeditious, and affordable resolution of disputes.

As for decisions, judgment may be delivered immediately at the conclusion of the hearing where issues are straightforward, evidence is uncontested, or the law is clear. However, in more complex matters, especially where detailed evaluation of evidence, witness credibility, or legal interpretation is required, the court will reserve judgment to a later date.

The duration of commercial proceedings varies depending on the complexity of the dispute, the volume of evidence and the efficiency of case management by the court. Generally, from the filing of a claim to final judgment, a commercial matter may take between 18 months and three years to conclude at the High Court, though more complex cases, particularly those involving multiple parties or interlocutory applications, may extend longer.

Appeals to the Court of Appeal may take an additional one to two years before determination, and further appeal to the Supreme Court is available only on matters of general public importance or constitutional interpretation.

Court approval is generally not required for the settlement of a lawsuit. However, there are specific situations where court approval is necessary. For example, if the lawsuit involves a minor or a person who is legally incapacitated, the court must approve the settlement to ensure that the terms are fair and in the best interests of the vulnerable party.

In insolvency or winding-up proceedings, settlements involving the company, its creditors, or contributories must be sanctioned by the court pursuant to Section 585 of the Companies Act, 2015 and Section 423 of the Insolvency Act, 2015.

In public interest litigation or constitutional petitions, while parties may settle privately, courts often insist on reviewing the terms to ensure that they do not contravene the Constitution or public policy under Article 159(2)(d) of the Constitution of Kenya, 2010.

The settlement of a lawsuit can remain confidential, but the extent of confidentiality depends on the stage and manner in which the settlement is concluded. Where parties settle a dispute privately and out of court, the settlement agreement is a private contract governed by the principles of contract law under the Law of Contract Act (Cap. 23).

However, once the parties decide to record the settlement as a consent judgment or order in court under Order 25 of the Civil Procedure Rules, 2010, it becomes part of the court record, which is generally a matter of public record, although the substantive terms of the consent may still be kept confidential by limiting the details recorded on the court file.

Where a settlement is reached during litigation and recorded as a consent judgment or order, it has the same effect as a decree of the court and is immediately enforceable through the normal execution procedures available under the Civil Procedure Act.

Where the settlement is reached privately outside court proceedings, it is treated as a binding contract and enforced by filing a civil suit for breach of contract, seeking specific performance or damages.

Where a dispute is resolved through arbitration under the Arbitration Act, 1995, the arbitral tribunal may issue a consent award which is binding and enforceable as a decree of the High Court.

Mediated settlements that have been filed and adopted by the court acquire the status of court judgments and are enforceable as such under the Mediation (Pilot Project) Rules, 2015.

Settlement agreements can be set aside by the court if they are vitiated by invalidating factors such as:

• misconduct, fraud, or a fundamental mistake by the mediator that was unknown to the applicant at the time and unfairly affected the outcome;
• a party’s lack of legal capacity to enter the agreement; or
• if the agreement is invalid or unenforceable under Kenyan or international law.

For court-endorsed settlements additional grounds include material non-disclosure or procedural irregularities.

To set aside such an agreement, a party can file an application to that effect to the court where the settlement was made and/or endorsed, supported by an affidavit evidencing grounds such as fraud, duress, mistake, or illegality. The court will evaluate the claim and render a decision on whether to set aside the agreement or not.

Parties to a suit in Kenya can be awarded a decree granting them contractual, equitable, or statutory relief, or any other appropriate relief. Remedies available include damages (general, special, exemplary, or nominal), injunctions, declaratory orders, restitution, and specific performance where appropriate.

The awarding of damages in Kenya is governed primarily by the common law principles of contract and tort, as applied by the courts, and supplemented by statutory provisions.

A party in breach of contract is required to compensate the counterparty by way of damages that naturally and directly arise from the breach, or that were within the reasonable contemplation of the parties at the time of contracting.

Remote or speculative losses are not recoverable, and the claimant must prove actual loss suffered. The “but for” test is commonly applied, meaning no damages can be recovered unless the loss would not have occurred but for the breach.

As to punitive or exemplary damages, Kenyan courts generally limit damages to compensatory relief. Punitive damages are rarely awarded. There are no statutory ceilings on the amount of damages, except where a specific statute prescribes limits such as in employment.

Under the Civil Procedure Act, the court has discretion to award pre-judgment interest at such rate as it deems reasonable for:

• any period prior to the filing of the suit (pre-judgment interest);
• from the date of filing the suit to the date of judgment (pendente lite interest); and
• from the date of judgment to the date of payment (post-judgment interest).

Where a decree is silent on further interest after judgment, the Civil Procedure Act provides that the court is deemed to have ordered interest at 6% per annum from the date of the decree until payment.

For arbitration proceedings and under the Arbitration Act, unless the parties agree otherwise, arbitrators in Kenya may award interest (simple or compound) in an arbitral award for sums payable, specified from such date, at such rate, with such rests as may be stated in the award.

In some cases, awards have included post-award interest, running from the date of the award until full payment. There are no general statutory caps on pre- or post-judgment interest in Kenya.

The enforcement of a domestic judgment in Kenya can be sought by the decree holder in the following ways:

• delivery of property specifically decreed;
• attachment and sale of the judgment debtor’s movable or immovable property;
• arrest and detention of the judgment debtor in civil jail;
• the appointment of a receiver to manage the debtor’s property; or
• recovery by way of garnishee proceedings (attaching debts owed to the judgment debtor by third parties).

A foreign judgment can be directly enforced in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act if it originates from a “designated reciprocating country” as declared by the Act. Such judgment, once registered in the High Court, is enforceable in the same manner as a domestic judgment.

If the judgment is from a country that is not a designated reciprocating state, the decree holder must file a fresh suit in Kenya based on the foreign judgment. In such proceedings, the foreign judgment is treated as evidence of the debt or obligation owed, subject to the defences available under Kenyan law.

Courts and tribunals are established by the Constitution and statutes which also outline their appellate pathways and mechanisms.

The Supreme Court established under Article 163 of the Constitution hears appeals from the Court of appeal in matters certified as being of general public importance and in matters involving constitutional interpretation.

The Court of Appeal established under Article 164 of the Constitution hears appeals from the High Court and the specialised courts of equal jurisdiction such as the Environment and Land Court and the Employment and Labour Relations Court.

Appeals from subordinate courts are first heard by the High Court and only further appeals on points of law proceed to the Court of Appeal. The High Court and the specialised courts of equal jurisdiction such as the Environment and Land Court and the Employment and Labour Relations Court have jurisdiction to hear appeals from subordinate courts and tribunals, with their scope limited to their respective areas for specialisation.

The Subordinate Courts established under Article 169 of the Constitution of Kenya do not have appellate jurisdiction.

On the powers of review, the Supreme Court has limited power to review its own decisions as its decisions are final and binding, except in exceptional circumstances where a review is permitted under Section 21 of the Supreme Court Act.

The Court of Appeal has the power to review its own decisions under specific circumstances, as provided by the Court of Appeal Rules and common law principles. The High Court has broader review powers compared to the appellate courts.

In all circumstances, the grounds for review are either that:

• there is a clerical or arithmetical mistake in the judgment or order;
• an error is apparent on the face of the record; or
• there is a discovery of new evidence that could not have been obtained earlier with reasonable diligence.

Appeals from judgments are governed by the rules of the court to which the appeal is being instituted such as the Civil Procedure Rules, the Court of Appeal Rules and Supreme Court Rules.

Generally, a party seeking to appeal is required to ensure timely filing of the requisite notice of appeal, memorandum of appeal and the record of appeal. Sometimes leave (permission) to appeal must be sought before commencing the appeal. Appeals from Court of Appeal judgments distinguish between appeals as of right (no leave needed) and those requiring certification.

Some of the circumstances under which an appeal may be allowed and judgment of the lower court set aside include errors of law, errors of fact, procedural irregularities or jurisdictional errors where the lower court lacked jurisdiction or exceeded its powers.

Appeals from subordinate courts to the High Court are required to be filed within 30 days from the date of the judgement or order appealed against. The appellant must file a Memorandum of Appeal outlining the grounds of appeal and serve the Memorandum on the respondent. A Record of Appeal, which includes the Memorandum of Appeal together with a certified copy of the proceedings, and any other relevant documents are filed.

Appeals to the Court of Appeal are instituted by filing a Notice of Appeal within 14 days of the High Court’s decision. Similarly, a Record of Appeal comprising the Memorandum of Appeal outlining the grounds of appeal alongside the certified copies of the proceedings and relevant documents are filed within 60 days of filing the Notice of Appeal.

Appeals to the Supreme Court are limited to matters involving constitutional interpretation or issues of general public importance. If the appeal is being filed as a matter of right, a party is required to file a Notice of Appeal within 14 days of the Court of Appeal’s decision. If the appeal is not as of right, a party must obtain certification from the Court of Appeal or the Supreme Court that the appeal involves a matter of general public importance.

In a first instance appeal of matters from subordinate courts, the High Court sitting in appeal reappraises the evidence as if hearing the case afresh, drawing its own inferences without needing to defer entirely to the trial court’s findings.

In appeals from the High Court to the Court of Appeal, the Court of Appeal examines the record for errors but intervenes only if the lower decision was wrong in principle, unsupported by evidence, or unjust due to procedural flaws.

Appeals to the Supreme Court are strictly on points of law of general public importance or constitutional interpretation. The Supreme Court’s appellate jurisdiction is narrow and exceptional, intended to deal with matters of constitutional interpretation or application, and issues of general public importance certified by the Court of Appeal or, in limited cases, by the Supreme Court itself.

In civil matters, where an appeal is filed against a decree or order of a lower court, the court can impose conditions when granting a stay of execution pending appeal. Typical conditions include:

• security for the due performance of the decree, usually in the form of a monetary deposit or a bank guarantee;
• timelines for filing the record of appeal or submissions, to avoid dilatory tactics; and
• conditions preserving the subject matter of the dispute, such as injunctions or maintenance of status quo orders.

Similarly, where an appeal is filed out of time, the court may extend the filing period on such terms as it deems just, which may include payment of costs, compliance with procedural directions or deposit of part of the decretal sum.

In criminal appeals, the court may impose conditions when granting bail pending appeal under Section 356 of the Criminal Procedure Code, such as sureties, deposit of travel documents or reporting periodically to a designated authority to ensure attendance during appeal hearing.

Under Section 78 of the Civil Procedure Act, the appellate court has all the powers and duties of the court of original jurisdiction, including the power to:

• determine a case finally, where the evidence on record is sufficient;
• remand a case, ordering the lower court to take additional evidence or re-try the matter;
• frame issues and refer them for trial, where factual questions were not properly addressed at first instance;
• take additional evidence itself, or direct it to be taken by the trial court; and
• pass any decree and make any order which ought to have been made by the lower court.

In criminal appeals, the Court of Appeal and the High Court (on first appeal) are empowered under Sections 354 and 361 of the Criminal Procedure Code (Cap. 75) to confirm, reverse, or vary the conviction or sentence, order a retrial, or make any order that justice requires.

The general rule is that the unsuccessful party is ordinarily ordered to pay the costs of the successful party. These costs typically include legal fees, court filing fees and expenses incurred in the proceedings. The court retains discretion to depart from such rule depending on the circumstances of the case, such as misconduct by a party or partial success on claims.

The costs awarded to the successful party are recovered by claiming such costs through a Bill of Costs filed in the same court. The Bill of Costs is heard by a Deputy Registrar who assesses the costs sought against the losing party and such costs must align with the guidelines in the Advocates Remuneration Order.

Once the taxing master assesses the costs recoverable, the prevailing party may pursue the recovery of such costs through the normal execution channel under Order 22 of the Civil Procedure Rules as a decree of the court.

The court exercises discretion when awarding costs, by considering the nature of the dispute, and the conduct of parties throughout the proceedings, including whether or not any party acted unreasonably, caused unnecessary delays or engaged in abusive litigation tactics. The extent of a party’s success is also relevant; where a party succeeds only partially, the court may apportion costs accordingly.

The court may also consider the parties’ conduct outside of court, such as attempts to negotiate or co-operate in pre-trial procedures, as well as statutory guidance, practice directions, and professional norms in determining what constitutes reasonable costs.

Interest can be awarded on costs at a rate not exceeding 14% per annum. The interest accruing is added to the costs awarded and is recoverable alongside the costs.

Alternative dispute resolution (ADR) in Kenya is strongly embedded within the country’s legal and constitutional framework, which expressly directs courts to promote alternative forms of dispute resolution, including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms.

Arbitration, mediation, and negotiation are the most widely used. Arbitration is particularly common in commercial contracts, construction disputes, and cross-border trade, and it is governed by the Arbitration Act, 1995 (as amended in 2010).

The judiciary has invested in systems that promote alternative dispute resolution, including, but not limited to, Court-Annexed Mediation and Alternative Justice Systems Policy. Mediation has grown in prominence following the launch of the Court-Annexed Mediation Programme in 2015, which is now fully operational in the Family and Commercial Divisions of the High Court. Negotiation, though informal, remains a widely used first option in employment disputes, debt settlements, and business conflicts.

Traditional dispute resolution also plays a role, especially in land and family disputes, provided it does not contravene the Constitution or principles of justice.

The Kenyan legal system actively promotes ADR through both legislation and judicial practice. Under Order 11, Rule 3 of the Civil Procedure Rules, courts screen cases during pre-trial conferences (within 30–90 days of pleadings) for mediation referral.

This is strongly embedded in case management through pre-trial screening where judges assess suitability and issuing directions for mediation. Outside the Court Annexed Mediation, parties can pursue private mediation, arbitration, or negotiation, with agreements registrable as court orders for enforcement.

A party cannot be compelled to participate in mediation and there is no sanction against them for failing to participate.

Institutions promoting ADR in Kenya are fairly well organised, with strong support from the Constitution (Article 159), the judiciary, and specialised bodies.

• Court-Annexed Mediation (CAM) – available in all High Court stations, run by Mediation Registrars with panels of accredited mediators. It has reduced case backlogs in family, land, and commercial disputes.
• Arbitration bodies – the Nairobi Centre for International Arbitration (NCIA) and the Chartered Institute of Arbitrators (CIArb – Kenya Branch) provide training, facilities, and professional standards for both local and international arbitration.
• Sector-specific ADR – Kenya Revenue Authority’s (KRA’s) Tax ADR, labour conciliation, and land dispute mediation by the NLC (National Land Commission) are key examples.
• Traditional ADR – community-based mechanisms are constitutionally recognised if consistent with human rights.

Together, these reforms are designed to build trust, professionalism, and accessibility in Kenya’s ADR system.

Arbitration in Kenya is principally governed by the Arbitration Act, No 4 of 1995 which is largely modelled on the UNCITRAL Model Law on International Commercial Arbitration.

Under the Act, parties have autonomy to determine the procedure of arbitration, including the number and qualifications of arbitrators, the applicable law, and the seat of arbitration. Where parties fail to agree, the Chartered Institute of Arbitrators (Kenya Branch) or the High Court may intervene in appointing arbitrators or resolving procedural impasses.

The Arbitration Act, 1995 does not expressly list non-arbitrable matters, but Kenyan case law and constitutional principles have clarified the scope. The following categories of disputes generally cannot be referred to arbitration.

• Criminal matters or offences against the state cannot be resolved through arbitration, as these are governed by public law and prosecuted by the state.
• Matters such as divorce, custody, and maintenance are governed by statute and public policy and are reserved for family courts.
• Constitutional questions and enforcement of rights under the Constitution of Kenya, 2010 fall within the jurisdiction of the High Court and cannot be privately determined.
• Insolvency, bankruptcy, and winding-up proceedings affect third-party rights and public interests, and are governed under the Insolvency Act, 2015, thus are not subject to arbitration.
• Employment and labour disputes are statutorily reserved for the Employment and Labour Relations Court (ELRC).

A party may only challenge an arbitral award on the following specific grounds under Section 35 of the Arbitration Act:

• that a party to the arbitration agreement was under some incapacity;
• the arbitration agreement is not valid under the law to which the parties have subjected it;
• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his/her case;
• the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration;
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or not in accordance with the Arbitration Act; or
• the making of the award was induced or affected by fraud, bribery, undue influence or corruption.

An application to set aside an arbitral award must be made within three months from the date the party received the award or, if a request for correction or interpretation was made, from the date of that determination.

Enforcement of arbitral awards is governed primarily by Sections 36 and 37 of the Arbitration Act, 1995, and, in the case of foreign awards, by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958.

For domestic arbitral awards, the party seeking enforcement files a formal application accompanied by the original or certified copy of the award and the arbitration agreement. Once recognised, the award is entered as a judgment of the court and can be executed like any other court decree.

For foreign arbitral awards, the party must file the award and arbitration agreement with the High Court, together with a certified English translation if necessary. The court will recognise and enforce the award as a decree, provided it was made in a country that is a party to the New York Convention and arises from a commercial relationship.

The government, through the Office of the Attorney General and Nairobi Centre for International Arbitration, issued three draft bills in mid-2025 under the ADR Policy for public comment.

• The Dispute Resolution Bill, intended to provide a statutory basis for mediation, conciliation and other ADR methods, and to establish a National Dispute Resolution Council.
• The Arbitration (Amendment) Bill, aimed at aligning Kenya’s Arbitration Act with global best practices, including provisions for emergency arbitrators, third-party funding and clarifications on the roles of courts.
• The Construction Adjudication Bill, to introduce faster, sector-specific adjudication mechanisms for construction disputes.

The call for stakeholder feedback on these was open until 30 June 2025.

However, the bills are not yet law, so their coming into force will depend on parliamentary passage, presidential assent and implementation. Given the process as of mid-2025, if all goes smoothly, one might expect some of the reforms (or portions thereof) to begin taking effect sometime in 2026, though exact commencement dates have not yet been publicly announced.

The most dynamic area of growth within commercial disputes in Kenya lies at the intersection of technology, data protection and data governance-related litigation. As the country continues to position itself as a regional technology hub, a surge of disputes touching on data misuse and breaches, cyber fraud and technology contract failures has been ushered into the sphere of commercial litigation.

The enactment of the Data Protection Act, 2019 and operationalisation of the Office of the Data Protection Commissioner (ODPC) have significantly shaped this space. Litigation and enforcement actions are intensifying in areas involving data processing, cross-border data transfers and compliance with statutory obligations under the Act.

Litigation is particularly expanding around data governance frameworks, where organisations are increasingly being held accountable for inadequate internal controls, poor cybersecurity infrastructure and failure to align with prescribed data management and retention standards.

As a result, technology and data protection have emerged as frontier areas of commercial litigation, making this one of the most dynamic and strategically significant areas of legal practice in the country.