Enforcement of Judgments 2024 Comparisons

Kenya does not have a central database through which the assets of a party expected to satisfy a judgment can be readily identified. Therefore, as the processes of initiating a lawsuit and enforcing a judgment are party-led, a party intending to sue and successfully enforce a judgment must conduct its own investigations to ascertain the other party’s asset position.

As a preliminary step, investigations could entail review of both publicly available information such as published financial statements and in-person inquiries where possible. Thereafter, ownership of any assets identified can be ascertained by conducting searches through the relevant registry/database, including:

• the Companies Registry;
• the Movable Property Security Rights Registry;
• the Hire Purchase Registry;
• the Lands Registry; 
• the Intellectual Property Registry; and
• the National Transport and Safety Authority Database.

In Kenya, Mareva injunctions, also known as freezing orders, may be granted by courts to prevent a judgment debtor from moving or otherwise dealing with their assets in order to evade satisfaction of a judgment entered against them.

In granting freezing orders, courts in Kenya have relied on English jurisprudence in making analogous orders for disclosure of documents or the administration of requests for further information to assist the judgment creditor in ascertaining the location of the judgment debtor’s assets.

Upon the filing of a lawsuit, the court may issue its judgment either during an interim stage or after a full hearing. The type of judgments issued would be determined on the circumstances of the case and the nature of the dispute. Below are some of the types of judgments that would be issued in Kenya.

Judgment in Default

Where a party is served with a summons to enter appearance and it fails to enter appearance to defend suit within the prescribed timeframe in law, this triggers the plaintiff to make an application for judgment in default. For this type of judgment, the plaintiff’s claim against the defendant must be liquidated; meaning a quantified money claim or one that can be precisely calculated. 

However, upon entry of such judgment, the court sets down the matter for a formal proof hearing for the plaintiff to prove its case as required by law.

Notably, a judgment in default is not entered based on the merit of the claim, but due to non-compliance with procedural requirements by the defendant. Accordingly, Kenyan courts have the discretion to set aside default judgments on just grounds.

Consent Judgment 

This is entered by the court pursuant to the terms mutually agreed upon for settlement of the suit. As it derives its legal effect pursuant to the consensus of the parties, it then follows that it is governed by the principles of contract law. Consent judgment may only be set aside if it is proved that the usual grounds for varying or rescinding a contract exist, for example, vitiating factors such as fraud, mistake, misrepresentation or collusion. 

Summary Judgment

In the clearest of circumstances where there are no triable issues capable of going to trial, the court may grant a summary judgment allowing the claim without a full trial allowing the claim at a preliminary stage. 

Judgment on Admission

Where a party to the suit either expressly or by implication admits to facts and, subsequently, the opposing party makes an application seeking a judgment on admission, the court may enter a judgment on admission. The admission must be plain and unequivocal and should not require further dissection to ascertain meaning. 

Interlocutory Relief

This is issued by the court upon determining an interlocutory application in which an applicant seeks urgent relief pending the hearing and determination of the main suit. An interlocutory order is not conclusive and, as such, does not deal with the final rights of the parties.

An example of an interlocutory relief is an injunction granted restraining the sale of land by a lender pending the hearing and determination of the main issues as to whether the lender is entitled to realise its security.

Final Judgment 

This is the court’s final determination of the rights and obligations of the parties in a suit. The resultant judgment would be the culmination of the trial process which witnesses may testify and documents be produced for the court’s scrutiny. The court may issue an order for specific performance, award of damages, prohibitive and mandatory orders, declarations, rectification of registers, award of interest and costs of the suit.

Upon delivery of a judgment, the successful party is responsible for the enforcement process. Such party should obtain a decree and proceed to enforce it through various means available, such as the following.

Attachment and Sale of Property

Property that may be attached includes land; movable property such as agricultural produce, machines and motor vehicles; and negotiable instruments. Property that is not liable to attachment would include a party’s tools of trade such as books of accounts; two thirds of their salary and property held in trust for other people. 

Attachment of a party’s property would include the eventual seizure of the property and/or registering a prohibitory order to prevent interference with the subject property as that would defeat the decree of the court and the enforcement process. The sale of the attached property is executed through a public auction by duly registered and licensed auctioneers.

Attachment of Salary

The successful party is also at liberty to make an application to the court to have the judgment debtor’s salary attached. The judgment debtor would then be issued with a notice to show cause, which essentially affords the debtor an opportunity to appear before the court and show sufficient cause as to why the attachment order should not be issued in favour of the judgment creditor.

If the judgment debtor does not show sufficient cause, the court shall make an order attaching a maximum of one third of the judgment debtor’s salary.

Garnishee Proceedings/Attachment of a Due Debt

Where the judgment debtor’s money is in the hands of a third party known as the “garnishee”, a decree holder may make an ex-parte application to have the funds attached in satisfaction of a judgment sum or debt. 

Garnishee proceedings are separate proceedings that flow from the judgment that pronounced the debt. An example would be where funds are held by a bank in the judgment debtor’s name and the judgment creditor credits such funds for attachment in satisfaction of the whole or part of the decretal amount by the court.

Similarly, where the judgment debtor is entitled to funds from a third party, the same can be attached in satisfaction of the decretal sum. For enforcement, the decree holder must be able to demonstrate that there is a debt due owed to the judgment debtor and that the said debt is not pegged on performance. 

The garnishee (the bank) will be called upon by the court to disclose how much money it holds on behalf of the judgment debtor and to show cause why the judgment debtor’s money in its hands should not be paid over to the judgment creditor. If the court is satisfied that the judgment creditor is entitled to attach the debt, the court will make a garnishee order nisi attaching the debt of which service thereof should be made within seven days of the hearing of the application.

Upon hearing of the application, should the court establish the absence of any vitiating factors (such as a lien being exercised by the garnishee or that the funds do not belong to the judgment debtor), it shall issue an order absolute. The effect of the order absolute is that the garnishee shall be required to pay the debt they owed the judgment debtor to the decree holder.

Appointment of a Receiver 

Under the applicable law, the court may order the appointment of a receiver of any property after a decree has been issued. Receivership refers to the process in which a court appoints a receiver to manage aspects of a company which is insolvent – in this case, the company is a judgment debtor who seems unable to pay the decretal sum. The receiver may be authorised to take custody of the property, manage, protect, preserve and possibly improve its status. 

Application for a Certificate of Satisfaction Order

Execution proceedings against the government follow a special procedure distinct from those against other individuals or entities. These proceedings are governed by the Government Proceedings Act (Cap 40) done through an ex-parte application by the decree holder and in the form of a letter to a deputy registrar seeking a certificate of satisfaction order. The certificate not only gives the particulars of the judgment which the government has failed to adhere to, but also certifies the costs payable. 

Once issued, the certificate must be endorsed by the Attorney General’s office and served upon the relevant government body's accounting officer related to the judgment. If payment is not made within three months of service, the decree holder may seek the court’s permission to initiate judicial review proceedings seeking an order of mandamus to compel compliance. 

Arrest of the Judgment Debtor

Usually, as a matter of last resort, a decree holder may apply to the court to have the judgment debtor arrested and committed to civil jail. The applicant should be able to demonstrate that there exists an additional reason other than the judgment debtor’s inability to fulfil their obligation. This could be concealment of property or the possibility of the judgment debtor absconding with the aim of delaying execution or outright refusal by the judgment debtor to pay despite having the means to do so.

The court then would issue the judgment debtor with a notice to show cause, which essentially affords them an opportunity to appear before the court and show sufficient cause as to why they should not be committed to civil jail. 

However, it may be noted that enforcement of a civil debt through imprisonment has been held by Kenyan courts to go against the basic freedom of movement. Accordingly, committal to civil jail is used as the very last option. Strictly speaking, committal to civil jail is not intended to be a punishment but as a means of compelling the judgment debtor to pay their debt. 

Unlike committal to criminal jail, where a party is typically a guest of the state, in civil jail, the judgment creditor is responsible for paying a subsistence fee to the government for each day the judgment debtor remains detained.

Following delivery of a judgment, the court upon request of a party or on its own discretion may issue an order staying execution for a specific period thereby granting the judgment debtor a grace period within which to make good a party’s claim and time to file the necessary proceedings to challenge the court’s decision.

The length of time taken in enforcing a judgment would largely depend on the knowledge and availability of a party’s assets. However, where an aggrieved party against whom enforcement is to be executed simultaneously files an appeal and an application to stay enforcement, this would in turn delay the process. 

Additionally, enforcement is not an instant process and there are statutory timelines within which auctions would conduct a sale by public auction (see 2.2 Enforcement of Domestic Judgments).

The incidental costs amongst others, include:

• court fees expended in extracting the final decree arising from judgment;
• an investigator’s fees where the assets of the judgment debtor need to be traced for attachment and sale; and
• auctioneers’ fees when attaching and selling property in execution of the decree.

Regarding the various options available to recover the decretal sum, the attachment and sale of immovable and/or movable assets is likely to be the most productive compared to other options for the following reasons.

• For example, the attachment of a party’s salary is limited to one third of their earnings, which may not satisfy the decretal sum promptly and carries the risk of the debtor becoming unemployed at some point in time.
• Garnishee proceedings face the obvious difficulty of identifying and tracing money or debts due held by a third party. Additionally, objection proceedings could be filed by a party claiming an interest over assets to be attached.
• In the case of receivership, the judgment debtor would have to contend with claims that take priority over their debts, such as those from secured creditors as provided under the law.

Prior to filing a lawsuit, it is prudent for a party to ascertain whether the party they intend to sue possesses assets that could potentially satisfy the awarded sum, and to determine their whereabouts.

These options above are stated in 1.1 Options to Identify Another Party’s Asset Position.

Examination of the Judgment Debtor as to Their Property

Additionally, the law allows for the decree holder to make an application to court to orally examine the judgment debtor/an officer of a corporation/any other person under oath in order to establish whether the judgment debtor has any property or other means of satisfying the decree.

Additionally, an application may be made for the production of any books or documents in order to establish whether the judgment debtor has the means of satisfying the decree.

An aggrieved party has the right to appeal the decision of the court and challenge the enforcement of a judgment in part or in its entirety. However, such a challenge ought to be done within the prescribed timelines.

Where a judgment was entered in default of entering an appearance, the defendant may challenge the enforcement of the judgment on the grounds that service of the summons to enter an appearance was not done in accordance with the law and, as such, the default judgment ought to be set aside. However, upon making such an application, the defendant is required to demonstrate to the court that it has an arguable defence and ought to attach a draft statement of defence in support thereof.

Payment in Instalments

Where a judgment debtor does not dispute the court’s award but seeks to buy themselves time, they are at liberty to apply to pay the awarded sum in instalments after the judgment has been issued. As a matter of practice, this usually includes a default clause to make the order self-executing without needing further court intervention should the party default in making payment.

The court, when exercising its discretion to issue such orders, automatically stays execution by the decree holder, subject to the judgment debtor complying with the payment terms. 

Stay of Execution Pending an Appeal 

The law allows a court, in the exercise of its discretion, to grant a stay of execution pending an appeal. The judgment debtor may, at the time of delivery of the judgment, make an oral application seeking stay orders pending the filing of an appeal.

Upon filing the appeal or contemporaneously, a party may file a formal application which ought to demonstrate that:

• the appeal has a reasonable prospect of success;
• the applicant stands to suffer substantial loss if the stay is not granted;
• the stay order, if denied, would render the appeal nugatory;
• the application has been made without unreasonable delay; and
• the applicant is willing to furnish such security as the court orders for due performance of the decree. 

In granting stay orders, a court has the discretion to order such terms and conditions it deems appropriate. Where stay orders are sought in the High Court, it is mandatory that security to secure performance of the decree be provided.

It is important to note that lodging a notice of appeal does not act as an automatic stay of execution except in a few instances where the following orders have been issued:

• an order for the winding up of a company;
• an order for an interpleader;
• a garnishee order; or
• an order for payment in instalments.

Objection Proceedings

A third party contesting attachment of property may initiate objection proceedings in which they would be contending that the attached property does not belong to the judgment debtor and, as such, the attachment is misconceived. 

The third party must demonstrate that:

• they were in possession of the property as at the date of attachment;
• they hold the property in their own right; and
• the application was filed without unreasonable delay.

A party may also ultimately challenge the enforcement process on the grounds that due procedure, as set out in law, was not followed.

All domestic judgments delivered by a court of law in Kenya are legally enforceable, provided that the judgment has not been overturned, set aside or varied by a subsequent judgment on appeal or time-barred by statute. Under the Statute of Limitations Act in Kenya, judgments are enforceable only within 12 years from the date of delivery.

Currently, there is no central register of all domestic judgments in Kenya, although a select number of judgments raising issues of jurisprudential value are published electronically or in print following delivery by the court. The Kenya Law Reports under the National Council for Law Reporting website hosts a database of these cases. 

To immediately ascertain the existence of a particular judgment in Kenya where the same is not published, a party will have to obtain a copy of the judgment from the court registry by writing to the court, disclosing their interest in the matter and requesting a copy of the judgment. As court records are deemed to be public information, the judgment sought will be likely obtainable, save in sensitive court matters such as matrimonial, children and succession cases.

Enforcement of foreign judgments in Kenya is guided by statute, international treaty and common law.

The Foreign Judgment (Reciprocal Enforcement) Act) 

The Foreign Judgment (Reciprocal Enforcement) Act (“the Act”) provides for the enforcement of judgments given in countries outside Kenya that accord reciprocal treatment to judgments given in Kenya. These countries are presently the following eight: Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and the Republic of Rwanda. 

Treaty Ratification

Kenya is also a signatory to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 1971 (the “Treaty”). The Treaty enables the recognition and enforcement of judgments given in civil and commercial cases in one contracting state in another contracting state. However, a judgment debtor will need to verify that their judgment is not excluded from enforcement under the Treaty. The Convention does not apply to decisions whose main object is to determine:

• the status or capacity of persons or questions of family law, including personal or financial rights and obligations between parents and children or between spouses; 
• the existence or constitution of legal persons or the powers of their officers, including questions of succession; 
• questions of bankruptcy, compositions or analogous proceedings, including decisions which may result therefrom and which relate to the validity of the acts of the debtor, and questions of social security;
• questions relating to damage or injury in nuclear matters; and
• decisions for the payment of any customs duty, tax or penalty.

Applicable Common Law Principles

For foreign judgments that do not originate from a reciprocal country, the Court of Appeal in Kenya has laid jurisprudence in the case of Jayesh Hasmukh Shah v Navin Haria & Another (2016) eKLR. The Court stated that the foreign judgment would be enforceable as a claim in common law in the absence of a reciprocal enforcement arrangement. Accordingly, all that would be required of the decree holder is to institute a suit and apply for a summary judgment in the terms of the foreign judgment. The judgment debtor is entitled to oppose the claim.

The approach a Kenyan court would take to enforce a foreign judgment largely depends on the state of origin, where the applicable laws would be applied accordingly.

It is important to highlight that the Act governing the enforcement of foreign judgments in Kenya does not apply to:

• judgments or orders whereby a sum of money is payable or an item of movable property is deliverable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty; 
• judgments that are concerned with the payment of damages to the extent that they are exemplary, punitive or multiple; 
• judgments or orders concerned with the protection or guardianship of children; 
• judgments that mandate periodic payments to spouses or former spouses; 
• judgments that are concerned with the management of the property or affairs of an incompetent person; 
• bankruptcy proceedings; 
• judgments regarding payments of money in matters of succession; 
• matters of social security or public assistance; and 
• injuries, damage or death resulting from nuclear accidents.

The Kenyan civil procedure laws provide that a foreign judgment shall be conclusive regarding any directly adjudicated matter between the same parties or parties claiming under them, under the same title, except where: 

• it has not been pronounced by a court of competent jurisdiction;
• it has not been given on the merits of the case;
• it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Kenya in cases in which such law is applicable;
• the proceedings in which the judgment was obtained are opposed to natural justice;
• it has been obtained by fraud; or
• it sustains a claim founded on a breach of any law in force in Kenya.

Conversely, in order to determine whether a court of another country had jurisdiction to adjudicate a cause of action, the court in Kenya would consider the judgment debtor’s conduct in the original court, such as:

• voluntarily appearing in the proceedings or counterclaiming in the original court proceedings;
• agreeing in writing or orally to submit to the jurisdiction of the original court or any other court in that country, regarding the subject matter of the proceedings;
• being habitually resident in the country of the original court, or if not a natural person, having its principal place of business or place of incorporation there; and
• having an office, place of business or branch in the country of the original court, and the proceedings related to transactions or occurrences arising from business conducted through that office or branch.

Foreign Judgments from Reciprocating Countries

Enforcement of a foreign judgment from a reciprocating country would involve making an application to the High Court which should be accompanied by the following documents:

• a certificate from the original court, issued under seal and signed by a judge or registrar, or its equivalent;
• the judgment or a certified copy, duly authenticated if not in English, accompanied by a notarised certification or authentication affidavit;
• an affidavit confirming:

1. the non-satisfaction of the judgment or specifying the unsatisfied sums or property;

1. the enforceability of the judgment by execution in the original court’s country; and

2. specific provisions of the judgment, if registration is limited under Section 6(5),

• for judgments from Commonwealth superior courts, a certificate under seal and signed by a judge or registrar, confirming the court’s status; and

• any additional prescribed evidence.

Such an application ought to be made within six years of the date of the foreign judgment, failure to which it shall not be enforceable.

Foreign Judgments from Non-Reciprocating Countries

To enforce a foreign judgment from a non-designated country in Kenya, the process entails initiating a lawsuit in the High Court of Kenya. The plaintiff must submit a precise statement detailing the nature of the claim and specifying the amount sought based on the foreign judgment debt. Just like a domestic suit, it shall be accompanied by a verifying affidavit, a list of witnesses, and a comprehensive bundle of supporting documents. Additionally, a certified copy of the foreign judgment must be appended to the filed lawsuit in Kenya.

Following this filing, the judgment debtor retains the right to challenge the validity or enforceability of the foreign judgment during these subsequent court proceedings. Such challenges may be on the grounds that the judgment was not conclusive as defined under the Civil Procedure Act.

The length of time taken to enforce a foreign judgment should ideally not be extensive as there is no trial per se. The only factor to consider is whether such enforcement will be challenged through an application filed in court by the other party. In that case, what would determine the time taken would largely depend on the court’s diary and other issues to consider for successful recovery or enforcement of the awarded reliefs.

Security for Costs

Kenyan courts may order a foreign plaintiff to provide security for the defendant’s costs in the event that the defendant succeeds in opposing enforcement.

The principles on which a court exercises its discretion in an application for security of costs were considered in the case of Keary Development v Tarmac Construction (1995) 3 ALL ER 534. F. Tuiyot., J in Ocean View Beach Hotel Ltd v Salim Sultan Mollo & 5 Others (2012) eKLR as follows.

• The court has complete discretion whether to order security, and, accordingly, it will act in the light of all the relevant circumstances. 
• The possibility or probability that the plaintiff company will be deterred from pursuing its claim by an order for security is not a sufficient reason for not ordering security.
• The court must carry out a balancing exercise. On one hand it must weigh the injustice to the plaintiff if prevented from pursuing a proper claim by an order for security. Against that, it must weigh the injustice to the defendant if no security is ordered and at the trial the plaintiff’s claim fails and the defendant finds themself unable to recover from the plaintiff the costs which have been incurred by them in their defence of the claim.
• In considering all the circumstances, the court will have regard to the plaintiff’s prospects of success. However, it should not go into the merits in detail unless it can clearly be demonstrated that there is a high degree of probability of success or failure.
• The court, in considering the amount of security that might be ordered, will bear in mind that it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount.
• Before the court refuses to order security on the ground that it would unfairly stifle a valid claim, the court must be satisfied that, in all the circumstances, it is probable that the claim would be stifled.

A foreign judgment could be challenged on the grounds set out in 3.3 Categories of Foreign Judgments Not Enforced.

In Kenya, arbitration is governed by the Arbitration Act, further to being recognised under the Constitution of Kenya as one of the alternative forms of dispute resolution (ADR) promoted by the courts. Kenya is progressive in promoting arbitration as an efficient and effective method of resolving disputes, emphasising the finality and binding nature of arbitral awards. In line with this constitutional spirit, the Arbitration Act:

• restricts the extent of the court’s intervention strictly within the parameters allowed by the Arbitration Act;
• emphasises the binding nature and finality of arbitral awards;
• limits the right of appeal to only questions of law arising from domestic arbitration, and even then, requires the agreement of the parties involved in such arbitration in this regard; and
• deliberates narrow grounds upon which an arbitral award could be set aside.

The principles outlined are globally recognised and further detailed in the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). This framework aims to provide a universally accepted approach that accommodates diverse legal systems, promoting the fair and efficient resolution of international commercial disputes.

A key aspect of the Model Law is its emphasis on limiting court involvement in arbitration, affirming the finality and binding nature of arbitral awards. Consequently, the provisions of the Arbitration Act align closely with international standards, ensuring minimal judicial interference in arbitration proceedings.

Precedent-Setting Litigation Relating to Arbitration in Kenya

The firm’s founding partner, Njoroge  Regeru, has over the years been involved in substantial precedent-setting litigation relating to arbitration, including the Nyutu Agrovet Limited v Airtel Networks Kenya Limited series of cases which settled the issue on appeals from the High Court to the Court of Appeal. 

Recently, on 9 May, 2024, the Court of Appeal affirmed the set-out threshold for granting leave to appeal the setting aside of an arbitral award to the Court of Appeal. In the realm of arbitral proceedings, it is paramount to maintain judicial integrity while allowing for necessary appellate review of High Court decisions. Adherence to the criteria outlined in the Arbitration Act is crucial to maintain the efficiency of arbitration and prevent prolonged proceedings which have the undesirable effect of escalating costs by engaging counsel by the respective parties. 

Arbitration was designed to resolve disputes swiftly with a vantage of confidentiality outside the traditional courtroom setting. Therefore, the affirmation provided by the Court of Appeal serves as a yardstick for litigants intending to challenge arbitral awards and for courts in shaping jurisprudence. This limited intervention by the Court is essential not only for safeguarding the finality and integrity of arbitral processes but also for providing clarity and consistency in the appellate review of arbitral awards under Kenyan law.

Cost and Time

The Arbitration Act imposes a strict time limit for challenging an arbitral award, allowing parties only three months from the date of the award’s delivery to file a challenge. This ensures that disputes are resolved efficiently and without unnecessary delay.

Where the award is not challenged, the successful party is at liberty to move the court seeking recognition and enforcement immediately. In Kenya, there is a specialised court, the High Court ‒ Commercial and Tax Division, whose mandate includes arbitration matters. The specialised court hears and disposes of matters arising in a reasonable period of time.

A longer period may be involved where there is a challenge to the award and the objection (if any) is responded to, the matter heard and determined, which may take a number of months.

However, as aforementioned, the matter cannot be dragged interminably through the appellate system in view of the limitation underlined by the Court in the Nyutu case.

Enforcement of Arbitral Awards

When dealing with an uncooperative opponent, a successful party would then, as required in law, file an application to the High Court to have an arbitral award recognised and enforced as an order of the court. Recognition involves the Court acknowledging the validity and binding nature of the tribunal’s decision upon the parties involved. Subsequently, enforcement compels the non-compliant party to fulfil the terms of the award through legal remedies similar to the enforcement of domestic judgments set out in 2.2 Enforcement of Domestic Judgments. These enforcement measures may include seizing assets, freezing bank accounts, civil committal, initiating bankruptcy proceedings, liquidating assets or evicting non-compliant parties.

Enforcement of Foreign Arbitral Awards

Under the New York Convention, which was ratified in Kenya on 10 February 1958, a state signatory commits to enforcing arbitral awards according to its domestic procedural laws. Article IV of the Convention specifies that parties seeking recognition and enforcement must submit specified documentation to the relevant court just as a party would in enforcing a domestic arbitral award in Kenya.

Essentially, under the laws of Kenya, there are no specific categories of awards that may not be recognised and enforced. However, there are grounds under which arbitral awards may not be recognised and may be subject to challenge, as discussed further in 4.6 Challenging Enforcement of Arbitral Awards.

Under Kenyan law, where a party fails to comply, the successful party is required to file the award together with an application to the High Court seeking its recognition and enforcement as an order of the court. The application is to be served on the respondent, who then has the opportunity to defend the enforcement proceedings.

The High Court shall adopt the arbitral award if there is no opposition raised. Once an arbitral award is adopted, the party whom the award was issued in favour of may proceed to seek enforcement as if the same were a domestic/foreign judgment. 

The grounds upon which a party may mount a challenge against the recognition and enforcement of an arbitral award are discussed in 4.6 Challenging Enforcement of Arbitral Awards.

In Kenya, a filing fee of KES10,000 (equivalent to approximately USD76.78) is payable when filing an arbitral award in the High Court. Other fees would include the application filing fees which are minimal and stipulated under the Court Fees Assessment Schedule, which provides the fees applicable to the lodging and filing of the respective documents in various courts. Lawyers’ fees would also be ordinarily incurred, which would be negotiated and agreed upon between the parties. These fees are subject to the advocates remuneration order, which sets out the minimum fees payable.

The length of time taken for the recognition and enforcement of an arbitral award would largely depend on whether the application seeking enforcement would be challenged and any subsequent appeal that may follow.

Under Kenyan law, recourse to the High Court against an arbitral award may only be made through an application for setting aside the award upon proof of any of the grounds stipulated under the Arbitration Act. There are two ways of mounting a challenge against the award, as set out below.

Appeal 

An aggrieved party may appeal to the High Court on a point of law as per Section 39 of the Arbitration Act. The appeal must be lodged within three months of delivery of the arbitral award. This, however, is a route available only on issues of law arising, and only if the parties to the arbitration had expressly agreed that any party can appeal on such issues of law. Failing agreement, this option is closed and a party cannot appeal.

It should be noted that the intervention of the court in arbitration appeals is limited to avoid undermining the purpose of arbitration as a final and binding alternative dispute resolution mechanism.

Setting-Aside Application

By applying to set aside the award under the provisions of Section 35 of the Act, the grounds upon which an arbitral award could be set aside are:

• incapacity of a party;
• invalidity of the arbitration agreement;
• no proper notice of appointment of the arbitrator was issued and, as such, the party was not able to present their case;
• the composition of the arbitration tribunal varied with the agreement of the parties;
• the procedure of the arbitration varied with the agreement of the parties;
• the arbitral award deals with a dispute that does not fall within the terms of reference to arbitration;
• fraud, bribery and corruption; and
• undue influence.

Subject Matter is Not Capable of Settlement Under Arbitration

Such matters would include matters touching on corruption, criminal matters, eg, murder, or where statutes provide for specific dispute resolution mechanisms.

Public Policy Reasons

What then constitutes “conflict with the public policy of Kenya” as a ground in an application seeking to set aside an award? The success or otherwise of the application would depend on whether the applicant satisfies the court that the requirements pertaining to the public policy ground have been met. Public policy has been dubbed an unruly horse as it is not capable of an absolute definition and cannot be possibly exhausted; it is therefore determined on a case-to-case basis.