Litigation 2024 Comparisons

Kenya’s legal system is based on common law.

The constitution is the supreme law, and any law that is inconsistent with it is considered void to the extent of the inconsistency. Next in the hierarchy are acts of parliament, the substance of common law, the doctrines of equity and certain English statutes of general application, in that order. African customary law is applicable in certain civil cases.

The Kenyan legal system is adversarial in nature, where the parties – either in person or through advocates – present evidence, examine witnesses and present arguments. Cases are conducted through both written and oral submissions.

The Civil Procedure Rules were amended in 2020 to introduce case management conferences to expedite the disposal of cases. The case management conference replaces the pre-trial conference that existed before the 2020 amendments.

Parties are required to file witness statements and to disclose the documents they intend to rely on before a case is certified as ready to be heard. The 2020 amendments also placed more emphasis on written advocacy.

In most cases, the courts will receive the witnesses’ statement of evidence which is taken as their evidence in chief, after which, the witnesses are cross-examined. Witness statements are required to be comprehensive, with cross-reference to the documents to be relied upon.

The Court of Appeal has also introduced “practice directions” to give guidance on the filing and prosecution of appeals in that court.

The Kenyan court system starts at the magistracy level, then passes to the High Court and courts of similar status, followed by the Court of Appeal and at the apex, the Supreme Court.

The magistrates’ courts include the small claims courts. The magistrates’ courts are also organised by subject matter jurisdiction, including criminal, civil, commercial, family and probate, and divisions dealing with employment and environment and land cases.

The High Court has divisions that deal with various subject matters including civil, commercial courts, anti-corruption courts, constitutional and judicial review courts. There are also courts of the same status as the High Court, specially created to deal with employment cases and environment and land cases. 

Appeals from the magistrates’ courts pass to the High Court, the Environment and Land Court, or the Employment and Labour Relations Court, depending on the nature of the dispute.

Appeals from the High Court, the Environment and Land Court, and the Employment and Labour Relations Court go to the Court of Appeal.

The Supreme Court is the highest court and has exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of president, and appellate jurisdiction to hear and determine certain appeals from the Court of Appeal.

All the courts are national courts, although some magistrates’ courts have only limited jurisdiction to the area in which they are situated.

The High Court has unlimited original jurisdiction in criminal and civil matters, jurisdiction to determine disputes relating to violations of rights or fundamental freedoms in the Bill of Rights, and jurisdiction to hear any question regarding the interpretation of the constitution.

There are also specialised tribunals which exercise judicial or quasi-judicial functions, as set out in the establishing statutes. These include the Tax Appeals Tribunal, the National Environmental Tribunal, the Business Premises and Rent Tribunal, the Public Procurement Administrative Review Board, the Competition Authority and the Industrial Property Tribunal, to name but a few. Their decisions are subject to the supervisory and appellate jurisdiction of the High Court.

Court proceedings are generally open to the public but the courts have the discretion to exclude the public where there is a need to protect the witness or the subject of the evidence.

Court filings are only accessible to the parties to the court case. They are not open to inspection by persons who are not parties to the case unless special leave is granted by the deputy registrar of the court. In practice, however, unless there is a gag order, parties to a case have been known to release copies of the court filings to third parties, including newspaper reporters.

A person must be admitted as an advocate of the High Court of Kenya and have a valid practising certificate to represent a party in court.

A foreign lawyer who is entitled to appear before the superior courts of a Commonwealth country can represent a party in court if admitted to practise by the attorney general for the purpose of a specific suit.

Litigation funding by a third-party funder with no interest in the litigation is prohibited.

Insurance to cover legal costs is legal but not common.

This is not applicable in Kenya.

This is not applicable in Kenya.

This is not applicable in Kenya.

This is not applicable in Kenya.

Contingency fees are prohibited in Kenya.

This is not applicable in Kenya.

The Civil Procedure Rules 2010 introduced the requirement for a plaintiff to include a demand letter issued to the opposing party in a bundle of documents to accompany a complaint, before filing a suit.

Notice of intention to sue ought to be given, unless the plaintiff’s interests are likely to be harmed by prior communication with the opposite party. Failure to issue notice of intention to sue may disentitle a claimant to a costs order if the defendant settles the claim on receipt of the summons. There is no requirement for the defendant to respond.

There is no requirement to engage in ADR before filing suit, unless there is a contractual requirement.

An action founded on contract should be brought within six years of the occurrence of the cause of action.

An action founded on tort (save for libel and slander, which have a limitation period of 12 months) may not be brought more than three years from the date on which the cause of action accrued.

An action to recover land should be brought within 12 years from the date on which the right of action accrued.

An employment/labour dispute should be filed within three years of the accrual of the cause of action, except where it can be shown that the claimant suffers continuing injury, in which case, the limitation period is 12 months after the cessation of the continuing injury.

Claims against government and statutory bodies have special shortened limitation periods.

The court has the power to extend the time for filing suits based on personal injury arising from tort when certain prescribed circumstances are shown to exist.

Kenyan courts will exercise jurisdiction over anyone in Kenya, save for persons who can object to the court’s jurisdiction on account of sovereign or diplomatic immunity, or choice-of-court clauses in contracts.

If the defendant resides or is situated outside Kenya, they can be sued in Kenya if:

• the whole subject matter of the suit is immovable property situated in Kenya;
• any act, deed, will, contract, obligation or liability affecting immovable property situated in Kenya is sought to be construed, rectified, set aside, or enforced in the suit;
• any relief is sought against any person domiciled or ordinarily resident in Kenya;
• the suit is for the administration of the personal estate of a deceased person who, at the time of their death, was domiciled in Kenya, or for the execution (as to property situated in Kenya) of the trusts of any written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of Kenya;
• the suit is brought to enforce, rectify, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or other relief for, or in respect of, the breach of a contract:
1. made in Kenya;
2. made by or through an agent trading or residing in Kenya on behalf of a principal trading or residing out of Kenya;
3. where the terms or legislation are to be governed by the laws of Kenya; or
4. which contains a provision to the effect that any Kenya court has jurisdiction to hear and determine that suit in respect of that contract;
• the suit is brought in respect of a breach committed in Kenya of a contract, wherever made, even though such a breach was preceded or accompanied by a breach out of Kenya which rendered impossible the performance of the part of the contract which ought to have been performed in Kenya; or
• the suit is founded on a tort committed in Kenya;
• any injunction is sought as to anything to be done in Kenya, or any nuisance in Kenya is sought to be prevented or removed, whether or not damages are also sought in respect thereof; or
• any person outside Kenya is a necessary or proper party to a suit properly brought against some other person duly served in Kenya.

A lawsuit can be instituted in various ways, including a complaint (for most civil cases), originating summons (certain types of civil cases), statement of claim (labour and employment disputes) or petition (for constitutional matters). The most common is the complaint. 

Whichever mode is used, the pleadings is accompanied by the supporting documents as provided by the relevant governing act. For example, a complaint or statement of claim must be accompanied by a verifying affidavit, statements of evidence and documents to be relied on. An originating summons or petition should have the verifying affidavits, supporting affidavits and exhibits.

A party is permitted to amend the document after it is filed. A complaint can be amended as of right if done before pleadings close. In all other cases the document can be amended with the leave of the court, at any time before judgment.

The party instituting proceedings obtains the summons from court to serve on the opposing parties. While the court has power to serve the summons, this is commonly done by the party instituting the proceedings. 

The timeframe for serving the summons is prescribed by the rules under which the proceedings are filed. A complaint must be served within 12 months of the summons being issued although this can be extended. Petitions and originating summons are usually required to be served within the period specified by the court. Service can be done in person, or by courier, email and mobile-enabled messaging applications.

In the circumstances set out above where a Kenyan court exercises jurisdiction over someone outside Kenya, leave to serve outside Kenya has to be obtained.

If a party does not respond to a lawsuit, the plaintiff may ask the court to enter default judgment where the claim is liquidated (monetary). The court can also bar a defendant from filing a defence if the defendant fails to file it in time, and the case proceeds on that basis.

The court can also proceed to determine the suit and to make orders or give judgment against the defendant in their absence.

The Civil Procedure Rules permit the institution of representative suits. A representative suit may be instituted where numerous persons have the same interest in any proceedings against the same defendant. The representative suit may be commenced by one person representing all of the claimants.

The parties instituting a representative suit are required to give notice of the suit to all persons with the same interest either through personal service or by public advertisement. Persons with an interest in the suit can then apply to be made a party to the suit. Representative suits are therefore opt-in in nature.

Class actions can be instituted claiming a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed. The class action would be in the form of a constitutional petition challenging the infringement of the constitution. The court may order that notice of the institution of the petition be published in a newspaper of national circulation.

There is no requirement to give cost estimates to the client before the filing of court proceedings. It is however considered good practice to do so.        

It is possible to make interim applications before the trial or substantive hearing of a claim. Such applications include those where a party seeks to protect the subject matter of the suit or seeks to summarily dispose of the claim either by obtaining summary judgment or striking out the claim.

Save for such applications, parties are encouraged to file and deal with other interlocutory applications relating to case management issues at the case management stage.

A party may apply for early judgment where the claim is admitted. The admission must be plain, obvious and unequivocal.

Judgment on admission can be entered at any stage of the proceedings. Judgment on admission cannot, however, be entered where there are serious issues of law and fact to be determined. A party can apply for a pleading to be struck out where it:

• discloses no reasonable cause of action;
• is scandalous, frivolous or vexatious;
• may prejudice, embarrass or delay the fair trial of the action; or
• otherwise amounts to an abuse of the process of the court.

The court can enter summary judgment where a plaintiff seeks liquidated damages with or without interest; or recovery of land with or without a claim for rent or mesne profits.

An application for summary judgment must be filed after the defendant has entered appearance and before the defence is filed.

The most common dispositive motions are those seeking judgment on admission, summary judgment and the striking out of proceedings, as described in 4.2 Early Judgment Applications.

The Civil Procedure Rules do not provide for joinder of parties as an interested party. They only provide for joinder as a plaintiff or as a defendant.

Persons may be joined as plaintiffs to a suit if they have a right to relief in respect of or arising out of the same act or transaction or series of acts or transactions, or if such persons brought separate suits where any common question of law or fact would arise.

Persons may be joined as defendants to a suit if there exists a right of relief against them in respect of or arising out of the same act or transaction or series of acts or transactions, or alternatively, if separate suits were brought against such persons where any common question of law or fact would arise.

In constitutional and judicial review proceedings, parties may be joined as an interested party if they have an interest in the matter, would be prejudiced if the matter is heard in their absence, or if they intend to submit material that is relevant to the issues before the court for determination.

A defendant can apply for a plaintiff to furnish security for costs under Order 26 of the Civil Procedure Rules. The courts have wide discretion to determine whether to make an order for security for costs. In Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others (Petition 16 (E023) of 2021), the Supreme Court set out the factors to be considered by a court when determining an application for security for costs.

The court has discretion to either award or deny the costs of interim applications, to direct that the costs be paid by the party that loses the substantive action, or to reserve the issue of costs to be determined at the end of the case.

Save for applications for injunctions which should be heard within 60 days of filing (although the court has power to extend this time for good reason), there is no fixed timeframe within which applications should be heard.

A party can move the court as a matter of urgency by filing an application, together with a certificate by an advocate certifying the matter as urgent. The court has discretion to grant an interim order if the matter is certified urgent pending the hearing and determination of the substantive application.

Under the Civil Procedure Rules, 2010, parties are required to file a list of witnesses to be called at the trial, together with written witness statements and copies of all the documents to be relied on at the trial, with their pleadings.

Apart from this, if a party believes that an opposing party has documents relevant to the case, an application can be made for the discovery of all relevant documents.

A party can apply for summons to issue to a person whose attendance is required either to give evidence or to produce documents in court. The expenses of the witness are to be covered by the party applying for the summons.

Where the summons is only to produce a document, the person summoned is deemed to have complied if they cause the document to be produced, instead of attending court personally to produce the document.

Where a person fails to comply with a summons either to give evidence or produce a document, the court may issue a warrant of arrest or make an order for the attachment of their property. If the witness appears in court, the attachment may be withdrawn.

See 5.1 Discovery and Civil Cases.

See 5.1 Discovery and Civil Cases and 5.2 Discovery and Third Parties.

Advocate/client confidentiality is recognised and protected under the Evidence Act.

An advocate is prohibited from disclosing any communication made to them by their client, and from disclosing the contents or condition of any document with which they have become acquainted, in the course of their employment as an advocate, without the consent of their client.

Communication made in furtherance of any illegal purpose or any fact observed by an advocate showing that a crime or fraud has been committed is, however, not protected.

Communication made between in-house counsel and an officer of the company is protected in anticipation of litigation. Any other communication, such as the giving of advice, is not protected.

A party can decline to disclose a document if it is covered by other forms of privilege, for example, communication between spouses and documents that are secret by operation of law.

A party can also challenge the production of a document where its production could lead to the infringement of a person’s right to privacy and confidentiality.

Injunctive relief may be granted where it is demonstrated that a recognisable right in law has been violated, and that it is necessary to restrain the other party from performing certain acts, or to compel them to perform certain acts.

An injunction may be issued where a party is able to prove, by affidavit or otherwise, that any property (movable or immovable) relevant to the dispute between the parties is in danger of being wasted, damaged or alienated by any party to the suit.

An injunction may also be issued if the defendant threatens or intends to remove or dispose of their property with the intention of obstructing or delaying the execution of any decree.

A party can also obtain an injunction to restrain a defendant from committing a breach of contract or any other kind of injury.

For the party applying for the injunctive relief to be successful, they must satisfy the court of the following:

• that they have a case that has a probability of success; and
• that they will suffer loss incapable of being compensated by damages – this means that if, after review of the documents, the court is of the opinion that the claim by the party applying for the injunction could be compensated by an award of a quantifiable amount of money, then the injunction will not be granted; or
• if the court is in doubt about the first two limbs of the test, it will decide the matter based on the balance of convenience.

The most common types of injunctions granted by the courts are:

• prohibitory injunction – to prohibit the other party from doing or continuing to do a wrongful act; and 
• mandatory injunction – to compel the other party to do something to either rectify an omission or to undo a wrongful act (the standard for granting this injunction is much higher than for a prohibitory injunction; it can only be issued where the party that is applying is able to prove the existence of special circumstances).

The court can also issue a Mareva injunction, which is discussed in more detail in 6.5 Respondent’s Worldwide Assets and Injunctive Relief.

Injunctive relief can be obtained in either an existing suit or a freshly instituted suit.

The party wishing to obtain an interim injunction files the application setting out the grounds for the application, supported by an affidavit setting out the facts in support of the application. These will be filed, together with a certificate of urgency signed by the advocate representing the party, explaining the urgency of the matter and the need to have the injunctive order issued promptly.

Once the papers are filed in court, the file is taken before a judge/magistrate who will consider the application, make an order if they feel a party has justified the granting of an order and give directions on how the injunction application will be heard, including directions on filing responses and written submissions.

With the judiciary’s e-filing system, once an urgent application is filed it is allocated to a judge and the judge, upon considering the application, issues an order or gives directions which are uploaded to the e-filing system. While there is no formal arrangement for out-of-hour judges, judges have been known to deal with urgent applications outside the court’s working hours and even over weekends, and upload the order or directions to the e-filing system.

Once the judge/magistrate issues the order, the party in whose favour it is issued is required to extract the formal order. This is then signed by the deputy registrar of the High Court or the executive officer/magistrate if the matter is in the magistrate’s court.

The party in whose favour the order has been issued will then be required to serve the formal order, together with the application and all other papers to be filed in court, within three days of the issue of the order.

An application should then be heard inter-partes (with the involvement of the other party) within 60 days of filing. The court is required to deliver a ruling within 30 days of the conclusion of the hearing.

Injunctive relief can be obtained on an ex parte basis but it can only be issued once, for not more than 14 days.

An applicant can be held liable for damages suffered by the respondent if the applicant later successfully discharges the injunction. A respondent should at the earliest opportunity when responding to an application for injunction, seek an order for the applicant to furnish an undertaking as to damages. The court may grant an interlocutory injunction on such terms as to an inquiry as to damages, keeping an account or giving security as the court may deem fit. Where the injunction is discharged, the respondent can then ask the court to make an inquiry as to damages suffered as a result of the injunction.

The court can grant a Mareva injunction requiring the respondent to either furnish security, or produce and place at the disposal of the court the property that is the subject of the Mareva injunction, or the value of the same that would be sufficient to satisfy the decree. 

Injunctive relief can only be obtained against a party to a suit or against a party’s agents who are acting under the party’s directions. A prayer for an injunction can only be sought against parties to the suit. In practice, a court will not proceed to hear a case seeking an injunction against a third party that is not joined in the suit, and the plaintiff is likely to be ordered to join the third party before the suit is heard and determined.

Where a person fails to comply with the terms of an injunction, the court may order that the property of the person in breach of the order be attached.

The court can also order that such person be detained in prison for a term not exceeding six months.

The conduct of trials is a combination of oral witness/expert examination and written arguments.

The  trial commences with the plaintiff presenting their case by producing the evidence in support of their case. This is done through the statements of evidence and the bundles of documents already before the court.

The witnesses are examined in chief, cross-examined and re-examined. In most cases, examination in chief is very limited, with the witness simply producing their statement of evidence. They are then cross-examined and if necessary, re-examined.

The process is repeated for the defence case. 

If there are documents to be produced in evidence, they are normally produced by the makers (ie, those who prepared the documents, unless there is an agreement to dispense with the attendance of the makers). An expert witness will usually give oral evidence and produce their report if they have prepared one.

Once the parties have concluded giving their evidence, they then address the court generally and on the law in support of their respective claims.

The plaintiff goes first and the defendant then responds to the plaintiff’s submissions. The plaintiff will then have an opportunity to reply to any new points of law that may have been raised by the defendant in their submissions and which the plaintiff did not initially deal with.

These submissions may be done orally, after the conclusion of the evidence, but usually the court directs written submissions to be filed after the evidence has been presented. Once the judge receives the written submissions, they will fix a date when judgment is to be delivered.

Shorter hearings for applications are usually conducted through affidavit filings. An interim motion or application is usually accompanied by an affidavit and the documents that the applicant seeks to rely on.

If the application is certified as urgent, the court sets a timeline for service and for the respondent to file their response. The response is also by way of a statement known as “Grounds of Opposition” (points of law response) and if necessary, an affidavit and supporting documents.

Parties then appear before the court where further directions are given in the filing of further affidavits and/or written arguments on the application. The applicant will be directed to file their written submissions, to which the respondent then files their response.

In some cases, the judge will direct the parties to make oral arguments on the application. Often, the judge will consider the application based on the documents and submissions filed by the parties.

Most courts have some form of case management conference before the case can be set down for hearing. The degree of control by the court varies, with the greatest level of control being in the commercial and tax division of the High Court in Nairobi.

There are no jury trials in Kenya.

The rules governing the admissibility of evidence are set out in the Evidence Act.

All facts except the contents of documents may be proved by oral evidence.

The contents of documents can only be proved by producing the original document, which is referred to as primary evidence, or secondary evidence where the original is not available.

Secondary evidence of the document is only permitted in exceptional circumstances, such as if the original document is in the possession of the person against whom it is sought to be proved (and that person has been served with a notice to produce said original document, but has failed to do so), or it has been destroyed or is otherwise not available.

Documentary evidence is also required to be produced by the maker, that is, the person who prepared the document, with exceptions to this rule including where the maker is dead, cannot be found or is incapable of giving evidence, or if their attendance cannot be procured without an unreasonable amount of delay or expense. The burden of proof is on the person intending to rely on the document.

Another important rule on the admission of evidence is the hearsay rule; oral evidence is required to be direct evidence, that is, from the person who actually saw or heard the matters on which the evidence is given.

Expert testimony is permitted. During the case management conference, the court is required to give directions relating to any expert reports.

The court has the power of its own motion to issue a commission to investigate and report on any matter in dispute, on the value of any property or on the extent of any damage.

The court may also of its own motion refer the examination of accounts to such a person as it thinks fit.

Most hearings will be carried out in open court. A member of the public is at liberty to sit in court and listen to the court proceedings.

The public may be excluded if there is anything sensitive about the witness or the evidence.

Judicial transcripts are available to the parties. Strangers to the case would have to satisfy the registrar of the court as to why access to the transcripts is required, before receiving such access.

The Kenyan legal system is adversarial. The judge’s role is to listen to both sides of the case and determine the case based on the evidence presented and the law.

A judge will intervene during a trial to clarify the responses given by the witnesses or the submissions being made by the advocates. They may also intervene to assert some control over proceedings, for example, where a witness is being badgered and requires the court’s protection, to rule on an objection or where the lawyer goes off course and introduces irrelevant matters.

Under the Civil Procedure Rules, a judgment should be delivered immediately after the conclusion of the hearing or within a period of 60 days from the conclusion of the trial. Unfortunately, this is rarely the case. 

If it is a complex matter that requires the judge to review the evidence and the legal submissions made by each of the parties, then the judge/magistrate will reserve their decision to a later date.

A normal commercial case is commenced by the filing of a complaint accompanied by a list of witnesses, the witness statements, and the documents to be relied on at the trial.

The court then issues a summons to enter appearance, which must be served together with the pleadings by the plaintiff’s advocate. Summons to enter appearance are valid, in the first instance, for 12 months, but a party may apply for the validity of the summons to be extended from time to time. 

Upon service, the defendant is required to enter appearance within 15 days, and thereafter file a defence with statements of evidence and a bundle of documents within 14 days of entering appearance.

The plaintiff is then required to file and serve a case management checklist within 14 days of the close of pleadings and to invite the other parties to fix a date to hold a case management conference.

All the parties are required to file a case management request not less than seven days before the date of the case management conference. This should set out any orders the parties may seek at the case management conference, including draft amended pleadings, requests for particulars and requests for interrogatories.

At the end of the case management conference the court signs a case management order, and where the parties are unable to settle the case, the court directs that the matter be fixed for hearing. In some courts, a hearing can be obtained within six months from the date the case management order is signed, while in other courts it may be a year before the case is fixed for hearing.

Once the hearing commences, the time it takes to conclude the hearing depends on the courts and the complexity of the matter. Straightforward cases can be concluded within two to three years, while it may take four to six years to conclude complex litigation.

Court approval is not required to settle a lawsuit, except in cases involving minors.

In all other cases, the parties are at liberty to negotiate and agree on their own terms and conditions of settlement.

Settlement of a lawsuit can remain confidential. Parties can agree the terms and thereafter simply ask the court to mark the case as settled.

Where the terms of the settlement are recorded in court they are in effect orders of the court from which the court can issue a decree for enforcement, as such. Where the terms are not recorded as an order of the court, a party may have to sue for their enforcement by obtaining judgment of the settlement agreement. It is therefore good practice where the terms are not being recorded in court, to ensure that the terms have been satisfied before marking the case as settled.

A settlement agreement can be set aside on the same grounds that would justify the setting aside of a contract. These include fraud, error, undue influence or misrepresentation.

The type of award available to a successful litigant will depend on the reliefs applied for. For example, a party that has successfully filed a claim to recover money will get a decree for the money sued for.

A person who is seeking compensation for a wrong committed may recover general damages (which apply to claims where it is impossible to quantify the loss suffered), special damages (quantifiable damages), exemplary or aggravated damages.

A successful litigant may also obtain an injunction either restraining or compelling any action; an order for specific performance of an obligation or an order rescinding a contract; an order of judicial review; or a declaratory order.

In employment disputes, the court can make an order of reinstatement or compensation.

General Damages and Special Damages

General damages normally depend on the circumstances of each case and are usually assessed by considering previous decisions by the courts in similar circumstances. No general damages can be awarded in a claim for breach of contract.

Special damages are awarded in instances where a person has liquidated their claim. Special damages will only be awarded if they are specifically pleaded and strictly proved at the hearing.

Limitations

In some instances, statutes limit the amount of damages that can be awarded. For instance, the Employment Act limits the maximum damages that can be awarded in a claim for unfair termination to the equivalent of 12 months’ salary. In practice, this limit has been exceeded in cases where a breach of a fundamental right in the constitution is proved.

Aggravated and Exemplary/Punitive Damages

Aggravated and exemplary/punitive damages are also available under Kenyan law in appropriate cases. Aggravated damages are intended to compensate the victim for aggravated injury or harm caused by the conduct of the offending party. The court considers factors such as malice or arrogance on the part of the defendant and where this is regarded as increasing the injury suffered by the plaintiff, aggravated damages may be awarded.   

Exemplary damages, on the other hand, are awarded where they are expressly provided for by statute, in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, and in cases where the defendant’s conduct has been calculated to make them a profit, which may well exceed the compensation payable to the plaintiff.

Where a claim is for payment of money, the Civil Procedure Act provides that the court may order the payment of interest at a rate it deems reasonable, to be paid on the principal sum from the date of the suit to the date of the decree.

Interest for any period before filing suit is only awarded if there is a contract providing for such interest.

Where a decree is silent with respect to the payment of further interest from the date of the decree, the court is deemed to have ordered interest at 14% per annum for High Court matters and 12% per annum for magistrate’s court matters.

Interest on special damages (quantifiable damages) is normally awarded from the date of filing suit, while interest on general damages is awarded from the date of judgment.

Section 38 of the Civil Procedure Act provides that the court may, on the application of the decree holder, order execution of the decree:

• by delivery of any property specifically decreed;
• by attachment and sale, or by sale without attachment, of any property;
• by attachment of debts;
• by arrest and detention in prison of any person; 
• by appointing a receiver; or
• in such other manner as the nature of the relief granted may require.

The procedure for enforcing a judgment from a foreign country depends on whether or not such foreign country has entered into a reciprocal enforcement agreement with Kenya.

The Foreign Judgments (Reciprocal Enforcement) Act provides for the enforcement of judgments given in countries outside Kenya, and accords reciprocal treatment to judgments given in Kenya.

Under this Act, final and conclusive judgments of superior courts from reciprocating countries may be registered in the High Court of Kenya and then enforced.

Certain types of judgments are excluded, such as for the payment of exemplary or punitive damages. It must be established that the original court had jurisdiction.

The procedure for the registration of a judgment is as follows:

• The judgment creditor applies to have the judgment registered by way of an originating summons. The application for registration must be made within six years of the date of the judgment. The application can be made ex parte, although the court may order that the application be served.
• If the court is satisfied that all the matters required by the act have been met, then the court will order the judgment to be registered.
• Notice of registration must be given to the judgment debtor, who may apply to set aside the registration.
• Upon registration, the judgment can be executed as a judgment of a Kenyan court.
• If a foreign country has no reciprocal arrangement with Kenya, the judgment creditor will have to file a new suit in Kenya based on the foreign judgment.

Appeals of judgments of the magistrates’ court lie as of right to the High Court, the Environment and Land Court, or the Employment and Labour Relations Court, depending on the nature of the dispute.

On applications, there are many specified orders for which there is an automatic right of appeal. For all other orders, an appeal will only lie with the leave of the court.

A party can apply to review a decree or order of the magistrates’ court, the High Court, the Environment and Land Court, or the Employment and Labour Relations Court but only when no appeal from the decree or order has been preferred.

Appeals from judgments of the High Court, the Environment and Land Court, and the Employment and Labour Relations Court are to the Court of Appeal.

A party can appeal to the Supreme Court from the Court of Appeal in any case involving the interpretation or application of the constitution, and in any other case where the Court of Appeal or the Supreme Court certifies that a matter of general public importance is involved.

See 10.1 Levels of Appeal or Review to a Litigation on where appeals lie as of right and where a party needs to seek leave to appeal before filing an appeal.

The general test when considering whether to grant leave to appeal is that leave should be granted unless an appeal has no realistic chance of success. Furthermore, leave to appeal should be granted even where there is no prospect of success if there is an issue which, in the public interest, should be examined by the appellate court.

Appeals from the magistrates’ court to the High Court are governed by the Civil Procedure Act and Civil Procedure Rules.

Appeals from the High Court, the Environment and Land Court, and the Employment and Labour Relations Court to the Court of Appeal are governed by the Appellate Jurisdiction Act and the Court of Appeal Rules.

Appeals from the Court of Appeal to the Supreme Court are governed by the Supreme Court Act and the Supreme Court Rules.

Every appeal from a subordinate court to the High Court must be filed within 30 days of the date of the decision appealed against. The appeal from the magistrates’ court to the High Court takes the form of a memorandum of appeal. The record of appeal, which contains the documents filed in the trial court, will then be filed as soon as typed proceedings are available.

A person who wishes to appeal to the Court of Appeal does so by filing a notice of appeal within 14 days of the date of the decision appealed against. The record of appeal should be filed within 60 days. Time does not run for the filing of the record of appeal from the moment a person applies for typed proceedings up to the time the person receives a notification that the typed proceedings are available for collection.

A person who wishes to appeal to the Supreme Court does so by filing a notice of appeal within 14 days of the decision to be appealed against. An appeal to the Supreme Court is instituted by filing a petition of appeal together with the record of appeal, within 30 days of filing the notice of appeal.

A first appeal is by way of a retrial. The appellate court must reconsider and evaluate the evidence, and draw its own conclusions, bearing in mind that it did not see or hear the witnesses and should make due allowance in that respect.

The appellate court is not necessarily bound to follow the trial judge’s findings of fact if it appears that the trial judge has clearly failed to take account of some particular circumstances or probabilities, to weigh up the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence of the case in general.

The appellate court has discretion on whether to allow points not raised at the hearing to be argued. If there is no basis for the new point in the pleadings and evidence, then the court will not allow the new point to be argued.

A second appeal to the Court of Appeal based on a decision given by the magistrates’ court is only allowed on matters of law.

The court can impose conditions on granting an appeal, depending on the decision of the Court of Appeal. For example, where a matter has been remitted to the trial court for a rehearing, the Court of Appeal can impose a condition on what is to be heard again, whether the entire case will be heard afresh and whether the case is to be heard by a different judicial officer, to name a few. 

The Court of Appeal has power to confirm, reverse or vary the decision of the original court, or to remit the proceedings to the original court with such directions as it may deem appropriate, or to order a new trial.

The party filing the document is liable for the court fees. The party is also responsible for their own lawyer’s fees.

The court has the discretion to award costs. The general rule is that costs should follow the event, meaning that the successful party should be awarded costs. The costs payable between the parties are normally about 60% of the total fees incurred by the party, and are assessed by the taxing master of the court, with a right of appeal to a judge.

The court will consider the parties to the litigation, the nature of the litigation, as well as the complexity and duration of the litigation.

In many cases the court will not make a costs order in a public interest litigation.

As set out in 11.1 Responsibility for Paying the Costs of Litigation, the general rule is that the successful party is awarded costs.

When assessing costs, the court will consider:

• reasonable compensation for the professional work done;
• costs awarded in previous matters that are similar to the case;
• the complexity of the proceedings;
• the responsibility on the advocate;
• the novelty of the matter; and
• the time spent, research done and skill deployed by counsel.

The court has discretion to award interest on costs at any rate not exceeding 14% per annum. This usually accrues from the date the costs are assessed by the court.

The constitution recognises and encourages ADR and this has led to ADR being viewed as an option to resolve disputes quickly in Kenya. 

Arbitration remains the most prevalent form of ADR in Kenya. There is a growing perception, however, that it is becoming very expensive and lengthy. The fact that there is no automatic right of appeal is also of concern in some respects, owing to what is seen as a decline in the quality of arbitral awards. 

There has been a steady increase in mediation, which has mostly been driven by the judiciary through the court-annexed mediation system. It is yet to gain acceptance as an alternative mode of dispute resolution.

The courts are increasingly urging parties to go through the court-annexed mediation process, before fixing cases for hearing. ADR is, however, not compulsory.

The court-annexed mediation is supervised by the court. Where a settlement is reached, the settlement agreement is signed and the court is informed. Where no settlement is reached, the mediator prepares a report which is sent to the court. The court matter then proceeds before a judge.

Where a contract between parties provides for arbitration and a plaintiff institutes court proceedings, the court can – on the application of the defendant – stay those proceedings pending reference of the dispute to arbitration.

There has been an increase in structured and well-organised institutions offering and promoting ADR in Kenya, including the Chartered Institute of Arbitrators, the Nairobi Centre for International Arbitration and the Strathmore Dispute Resolution Centre.

The judiciary has been a promoter of mediation.

The Arbitration Act, No 4 of 1995, is the relevant law for the conduct of arbitration and the recognition and enforcement of arbitral awards.

The Nairobi Centre for International Arbitration Act, 2013 is also relevant for arbitrations that are administered by the Nairobi Centre for International Arbitration.

While there is no exhaustive list, there are matters that cannot be referred to arbitration. These include criminal matters, bankruptcy disputes, corporate insolvency proceedings and succession disputes.

Parties can agree that an application can be made to the High Court to determine any question of law arising in the course of arbitration. Parties can also agree that an appeal can be made to the High Court on any question of law arising out of an award.

A second appeal may be made to the Court of Appeal from the decision of the High Court if the parties have previously agreed to this, or if the Court of Appeal grants leave to appeal.

Where parties have not agreed on an appeal to the High Court, an arbitral award can only be challenged through an application to set aside the arbitral award.

An arbitration award can be set aside by the High Court if it is demonstrated that:

• a party to the arbitration agreement was under some incapacity;
• the arbitration agreement is not valid;
• the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitration proceedings, or they were otherwise unable to present their case;
• the arbitral award contains decisions on matters that are beyond the scope of the arbitration; 
• the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the arbitration agreement or was not in accordance with the Arbitration Act;
• the making of the award was induced or affected by fraud, bribery, undue influence or corruption;
• the subject matter of the dispute cannot be settled by arbitration under the law of Kenya; or
• the award is in conflict with the public policy of Kenya.

Section 36 (2) of the Arbitration Act states: “An international arbitration award shall be recognised as binding and enforced in accordance to the provisions of the New York Convention or any other Convention to which Kenya is a signatory and relating to arbitral awards.”

Article III of the New York Convention requires contracting states to recognise arbitral awards as binding, and to enforce them in accordance with the rules of procedure of the territory where the award is relied upon.

The New York Convention further requires that no substantially more onerous conditions should be imposed on the recognition or enforcement of foreign arbitral awards than those imposed on the recognition or enforcement of domestic arbitral awards.

The procedure of enforcement of arbitral awards, whether foreign or domestic, is set out in the Arbitration Rules, 1997, made under the Arbitration Act. Rule 4 provides that any party may file an award in the High Court.

The party is then required to give notice of filing of the award to all the parties, giving the date thereof, the cause number and the registry in which the award was filed. The party is also required to file an affidavit of service to confirm that all the parties have been notified.

If no application is made to set aside the award under Section 35 of the Arbitration Act, then the party seeking to enforce the award may apply ex parte for leave to enforce the award as a decree of the court. 

The award will thereafter be enforced in accordance with the Civil Procedure Rules.

A Mediation Bill is being discussed which, if enacted as drafted, would make it a requirement for advocates to file a certificate stating that mediation has been considered, and for the defendants to file a similar certificate when entering appearance. There is no clear indication whether the Mediation Bill will ever be enacted and when it would come into operation if it is.