International arbitration is expressly recognised under Kenya’s legislative framework, which is largely based on the UNCITRAL Model Law on Arbitration. Parties in both the public and private sectors frequently incorporate arbitration clauses of an international character into their contracts, leading to a significant increase in the use and prominence of international arbitration, particularly over the past ten years. Rather than serving as the default dispute resolution mechanism across all industries, international arbitration is concentrated in particular sectors, most notably infrastructure, construction, mining, oil and gas, renewable energy, and financial services. In addition to a supportive legislative framework and broad acceptance by contracting parties, the use of international arbitration is reinforced by bilateral instruments, project finance agreements and underlying commercial contracts, which commonly designate international arbitration as the preferred dispute resolution mechanism.

The construction sector has been a particularly significant driver of international arbitration in Kenya. Large-scale infrastructure projects involving international contractors and state agencies have given rise to disputes concerning delays, variations to the scope of work, cost overruns and contractual defaults. The established role of arbitration in this sector has strengthened further as the number of major infrastructure projects involving international contractors and state-owned entities has continued to increase.

Although litigation before the domestic courts remains the more common form of dispute resolution for purely domestic disputes, the use of international arbitration is steadily increasing in higher-value projects where parties prefer administered proceedings under the auspices of leading arbitral institutions. Despite this continuing preference for litigation in wholly domestic matters, domestic parties readily agree to arbitration where appropriate, and Kenya’s Arbitration Act clearly identifies the circumstances in which an arbitration is regarded as international.

The sectors that contribute most significantly to Kenya’s international arbitration caseload include public-private partnership (PPP) infrastructure, construction, mining, oil and gas, renewable energy, telecommunications and financial services. These industries account for a substantial proportion of cross-border commercial transactions and foreign direct investment, with contracts frequently providing for arbitration under either institutional or ad hoc rules. Kenya has also been the subject of a number of investor–state arbitrations before ICSID following its ratification of the ICSID Convention and through its network of bilateral investment treaties. In addition, Kenya has increasingly developed as both an enforcement jurisdiction and a prospective arbitral seat through the Nairobi Centre for International Arbitration (NCIA), with international arbitral awards being recognised and enforced in accordance with the New York Convention.

International arbitration activity in Kenya has been more concentrated in infrastructure and construction, energy and natural resources, telecommunications, financial services, mining and PPP sectors. These industries account for a significant proportion of cross-border commercial transactions and foreign direct investment, with contracts frequently providing for arbitration under institutional or ad hoc rules. Kenya has also experienced investment treaty arbitration arising from large-scale infrastructure, natural resource and energy projects involving foreign investors.

These sectors tend to generate more international arbitration because they involve high-value, long-term and technically complex projects with multiple stakeholders from different jurisdictions. Parties generally favour arbitration for its neutrality, confidentiality, procedural flexibility and the international enforceability of arbitral awards under the New York Convention, making it the preferred dispute resolution mechanism for cross-border commercial and investment disputes.

The NCIA is the institution most frequently used by parties seeking a Kenyan-seated international arbitration process. The NCIA is the premier government-backed institution, designed to promote Nairobi as a hub for international commercial arbitration. It administers arbitrations under the highly modernised NCIA Arbitration Rules, 2015 (revised in 2022), which include provisions for emergency arbitrators and expedited procedures.

No notable arbitral institutions with statutory backing have been established in the last 12 months. It is worth noting that parties also frequently choose international institutions such as LCIA, ICC, SCIA, HKIAC and ISCID in relation to Kenyan contractors. Parties that have a preference for ad hoc arbitration can also access CIArb (Kenya Branch).

Kenya does not have a dedicated “international commercial court” or a separate arbitration court. Both domestic and international arbitration-related court applications are channelled through the commercial division of the High Court, whose judges have considerable expertise in arbitration matters.

The primary national legislation governing both domestic and international arbitration in Kenya is the Arbitration Act, No 4 of 1995 (the “Arbitration Act” or the “Act”). The Act is closely modelled on the UNCITRAL Model Law and was deliberately adopted to demonstrate to the international business community that Kenya offers a familiar, standardised and predictable legal framework for the resolution of commercial disputes.

Although the Act does not materially depart from the UNCITRAL Model Law, it incorporates a number of targeted local adaptations to address historical and practical considerations.

One notable departure is Section 32B, which expressly confers on arbitral tribunals the statutory power to award interest and costs. Introduced in 2009, this provision avoids the need for parties to pursue separate court proceedings to recover interest and reflects the principle that costs should generally follow the event.

Another significant distinction is Section 39, which allows parties in domestic arbitrations, but not international arbitrations, to agree in advance to permit a limited appeal to the High Court on a question of law where they consider this to be desirable.

Currently, the only proposed legislation is the Arbitration (Amendment) Bill 2025, which introduces only minor changes and is not expected to significantly alter Kenya’s arbitration landscape. There has been no major statutory reform or pending parliamentary overhaul of the Arbitration Act in the past 12 months.

The arbitration landscape in Kenya is primarily shaped by judicial precedent, particularly landmark Supreme Court decisions on the finality of arbitral awards. Historically, High Court decisions on setting aside awards under Section 35 were considered final and unappealable. However, the Supreme Court took a slightly revised position in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] eKLR, allowing appeals to the Court of Appeal only in exceptional circumstances – such as where the High Court exceeded its mandate, reached a manifestly wrong decision causing grave injustice, or where the appeal involves a point of law of general public importance. This narrow appellate window was later reinforced in Synergy Industrial Credit v Cape Holdings Limited [2021] eKLR.

The legal requirements for an enforceable arbitration agreement are strictly delineated in Section 4 of the Arbitration Act, namely that the agreement must be in writing. An agreement is deemed to be in writing if it is contained in a document signed by the parties, or if it is formed through an exchange of letters, telex, telegrams, electronic mail or other means of telecommunication that provide a verifiable record of the agreement.

An arbitration agreement may also be in the form of an arbitration clause in a contract or in the form of a separate agreement.

Section 4(4) of the Arbitration Act explicitly provides that a reference in a contract to a separate document containing an arbitration clause constitutes an arbitration agreement, provided the contract is in writing and the reference makes the clause part of the contract.

Non-arbitrable matters in Kenya are not exhaustively listed in the Arbitration Act, but are determined by jurisprudence and public policy considerations. Certain disputes cannot be resolved through private arbitration because they involve public interest, state functions, or the rights of third parties. These include criminal matters, where the State holds a monopoly on penal sanctions exercised through the Office of the Director of Public Prosecutions, the National Police Service, and correctional institutions.

Other non-arbitrable categories are constitutional interpretation and the enforcement of fundamental human rights, which fall under the exclusive original jurisdiction of the High Court as provided by Article 165 of the Constitution. Taxation disputes are also excluded, as the assessment and levying of taxes are statutory functions reserved exclusively for the Kenya Revenue Authority (KRA), as affirmed in the case of Okwama v Milestone Gaming Limited & 3 others [2025] KEHC 11932 (KLR). Additionally, matters of personal status – such as marriage, divorce, child custody, and bankruptcy or insolvency proceedings – are generally non-arbitrable because they operate in rem and affect third parties and broader society.

Kenyan courts apply a general test to distinguish arbitrable from non-arbitrable disputes: whether the matter involves only private commercial rights that parties are free to settle between themselves, or whether it implicates public interest, statutory monopolies, or the rights of third parties.

Kenyan courts have not developed extensive standalone jurisprudence on the law governing the arbitration agreement as distinct from the main contract, but the operative rule mirrors the Model Law: the parties’ express choice of law governs, and failing that, the law of the seat applies, which, for Kenyan-seated arbitrations, means Kenyan law.

On the enforcement of arbitration agreements, the courts are firmly pro-arbitration, consistent with Kenya’s obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), which requires recognition of arbitral agreements and enforcement of final awards. Section 6 of the Arbitration Act obliges a court to stay proceedings and refer parties to arbitration where a valid arbitration agreement covers the dispute and this position is reinforced constitutionally by dint of Article 159(2)(c) of the Constitution of Kenya. The grounds for refusing a stay are narrow – namely, where the arbitration agreement is null and void, inoperative or incapable of being performed or if there is no genuine dispute between the parties. The main practical pitfall is timing as a stay application must be made promptly before any step is taken to answer the substantive claim, or the right to arbitrate is treated as waived.

Kenya strictly enforces the doctrine of separability of arbitration agreements from the main contract. Under Section 17(1) of the Act, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. Consequently, a decision by the arbitral tribunal that the main contract is null, void, or terminated does not automatically invalidate the arbitration clause.

Party autonomy is the central pillar of the Kenyan Arbitration Act. Section 12(1) explicitly states that no person shall be precluded by reason of their nationality from acting as an arbitrator, unless the parties have otherwise agreed. Parties have absolute freedom to dictate the number of arbitrators, their professional qualifications and the method of their selection

When parties’ chosen arbitration appointment method fails or their contract is silent on the issue, Section 12(2) and (3) of the Arbitration Act provides clear statutory default rules.

For a three-arbitrator tribunal, each party appoints one arbitrator, and the two appointed arbitrators then select the third, who serves as the presiding arbitrator. If a party fails to appoint its arbitrator within 30 days of a request, or if the two arbitrators cannot agree on the third within 30 days, either party may apply to the High Court for the necessary appointment.

For a sole arbitrator, the parties have 14 days to reach agreement. If they fail to do so, either party may apply to the High Court to make the appointment.

In multiparty arbitrations (involving three or more opposing sides), the Act does not contain dedicated default procedures. Where parties have not adopted institutional rules addressing multiparty appointments (such as the NCIA Rules), the High Court exercises its inherent jurisdiction under Section 12 to appoint arbitrators in a manner that ensures equality and fairness among the parties.

The High Court intervenes under Section 12(5) only as a supportive mechanism to prevent the frustration of the arbitration agreement. When making an appointment, the High Court must have regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator.

The limits within which the High Court can intervene in appointment of arbitrators are provided for under the provisions of Sections 12 (5), (6) and (7). As a result, where a sole arbitrator has been appointed under subsection (4), the party in default may, upon notice to the other party, apply to the High Court within 14 days to have the appointment set aside. However, the High Court may only set aside the appointment if it is satisfied that there was good cause for the failure or refusal of the party in default to appoint his or her arbitrator in due time. This ensures that appointment of arbitrators is largely a discretion of the parties, with the High Court only exercising a supervisory role consistent with Section 10 of the Kenyan Arbitration Act, which provides that no court shall intervene in matters governed by the Act except where so provided in the Act.

Sections 13 of Kenya’s Arbitration Act governs the grounds for challenging the appointment of arbitrators while Section 14 governs the procedure for challenging the appointment. Pursuant to Section 13, the appointment of an arbitrator may be challenged on only two grounds as follows:

• Circumstances exist that give rise to justifiable doubts as to his or her impartiality and independence.
• The arbitrator does not possess the qualifications agreed to by the parties.

Pursuant to Section 14, a party must send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days of becoming aware of the constitution of the tribunal or the offending circumstances. The tribunal itself rules on the challenge first. If the challenge is rejected by the tribunal, the challenging party has 30 days to apply to the High Court to decide on the challenge. The decision of the High Court is final.

This has been affirmed in various Kenyan decisions where the courts have an objective test for bias: whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. This standard helps prevent parties from using challenges merely to delay or frustrate the arbitral process.

Section 13(1) of Kenya’s Arbitration Act imposes a continuing, mandatory duty of disclosure. When a person is approached in connection with their possible appointment as an arbitrator, they must disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. This duty continues throughout the arbitral proceedings.

Kenyan practitioners and courts also typically rely on the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration (the Red, Orange, and Green lists) to benchmark the standards of independence and the necessity of disclosure.

The doctrine of competence-competence is a cornerstone of Kenyan arbitration law, codified in Section 17(1) of the Act. It expressly provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.

Court intervention regarding jurisdiction is carefully circumscribed. Under Section 17(6), if the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party may, within 30 days, apply to the High Court to decide the matter. While the High Court has the power to address it, Kenyan courts exhibit a strong general reluctance to intervene and derail ongoing proceedings, preferring to uphold the tribunal’s mandate unless there is a glaring jurisdictional error.

If the arbitral tribunal rules that it lacks jurisdiction, the Arbitration Act does not explicitly provide an avenue for the High Court to review and overturn this negative ruling to compel the tribunal to hear the case. In practice, a negative ruling on jurisdiction essentially terminates the arbitral proceedings, leaving the parties to pursue their remedies through traditional litigation in the national courts.

Courts in Kenya have no first instance jurisdiction on any challenge to the jurisdiction of an arbitral tribunal. Under Section 17(2), a plea that the arbitral tribunal does not have jurisdiction must be raised first within the Arbitral Tribunal no later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that they have appointed, or participated in the appointment of, an arbitrator. A plea that the tribunal is exceeding the scope of its authority must be raised with the Arbitral Tribunal as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. Court intervention is only available after a determination has been made by the Arbitral Tribunal.

When the High Court reviews a jurisdictional challenge under Section 17(6) or during a setting aside application under Section 35, the standard of review regarding the pure interpretation of the arbitration agreement (a question of law) is generally de novo. The court must independently ascertain if a valid agreement exists. However, regarding questions of admissibility and factual findings made by the tribunal, the court largely defers to the Arbitral Tribunal generally, refusing to substitute its own factual analysis for that of the tribunal.

As analysed in 3.3 National Courts’ Approach, the national courts take a punitive approach toward parties who commence litigation in breach of an arbitration agreement. Courts readily stop proceedings and refer the matters to arbitration where arbitration clauses exist.

Kenyan law upholds the doctrine of privity of contract and party autonomy in arbitration. As a result, an arbitral tribunal cannot assume jurisdiction over individuals or entities that are neither party to the arbitration agreement nor signatories to the contract. This is because arbitration requires the consent of the parties, who must freely choose to have their dispute determined by arbitration.

However, a few courts have considered, in the absence of a submission to arbitration, limited and narrow circumstances under which an arbitration agreement can bind third parties. These include the following:

• agency – where a signatory signed expressly on behalf of an undisclosed or disclosed principal;
• assignment/succession – where a third party has legally assumed the rights and obligations of the contract; and
• piercing the corporate veil – in rare instances of proven fraud or where a subsidiary is a mere special purpose vehicle purely designed to evade arbitral obligations.

These principles apply equally to domestic and foreign third parties, though courts are very cautious in binding non-signatories to respect the consensual nature of arbitration.

An arbitral tribunal in Kenya is vested with robust powers to award preliminary or interim relief. Under Section 18(1) of the Act, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of protection as the tribunal may consider necessary in respect of the subject matter of the dispute.

Such relief is binding and carries the force of law between the parties. The types of relief awarded typically include orders for the preservation, custody, or sale of goods forming the subject matter of the dispute, mandatory or prohibitory injunctions, and orders securing the amount in dispute.

The High Court plays a vital, concurrent, and supportive role in preliminary and interim relief. Under Section 7(1) of the Act, it is not incompatible with an arbitration agreement for a party to request, before or during arbitral proceedings, an interim measure of protection from the High Court.

Parties usually approach the court when the arbitral tribunal has not yet been constituted and relief is needed urgently, or when the relief required affects third parties over whom the tribunal has no jurisdiction. In Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR), the court confirmed its expansive powers under Section 7 to grant injunctions to preserve the status quo pending the outcome of the arbitration.

The High Court has jurisdiction to grant interim reliefs is not only limited to local arbitral tribunals. The High Court can also grant orders in aid of foreign-seated arbitrations, recognising that assets may be located in Kenya and require immediate preservation to ensure the ultimate foreign award is not rendered a paper decree. This position was affirmed by the court in the case of Safaricom Limited v Ocean View Beach Hotel Limited & 2 others, where the court stated that it may be necessary for an arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration proceedings themselves.

Emergency Arbitrators

The Arbitration Act itself does not explicitly legislate for emergency arbitrators. However, national law respects party autonomy. Pursuant to the Arbitration (Amendment) Bill, 2024, an “arbitral award” is defined as any award of an arbitral tribunal and includes an interim arbitral award, or award of an emergency arbitrator. Additionally, it defines an “arbitral tribunal” as a sole arbitrator or a panel of arbitrators and includes an emergency arbitrator appointed pursuant to the Rules of Arbitration agreed to or adopted by the parties. This implies that, should the amendments be passed by the Parliament, the Arbitration Act will officially recognise emergency arbitrators. Kenyan courts readily uphold institutional arbitration rules that provide for emergency arbitration and other similar tools of efficiency in arbitration.

Kenyan law expressly empowers both the arbitral tribunal and the courts to order parties to deposit security for costs of the arbitration proceedings. Section 18(1)(b) explicitly states that the arbitral tribunal may require any party to provide appropriate security in connection with an interim measure ordered. Furthermore, under Section 7, the High Court can order security for costs as part of its broad interim protective powers.

The procedure of arbitration in Kenya is governed by a hierarchy of rules. The primary rules are provided under the mandatory provisions of the Arbitration Act (Cap 49), which guarantee due process, equality, and fairness. However, party autonomy lies at the core of the procedure for arbitration in Kenya. As a result, Section 20(1) provides that the parties are entirely free to agree on the procedure to be followed by the arbitral tribunal. Parties routinely adopt institutional rules (UNCITRAL, NCIA, ICC, or LCIA rules) to govern the procedural mechanics.

However, where the parties have failed to agree on the rules of procedure, the arbitral tribunal may conduct the arbitration in the manner it considers appropriate, having regard to the desirability of avoiding unnecessary delay or expense while at the same time affording the parties a fair and reasonable opportunity to present their cases.

While flexible, the Arbitration Act mandates several specific procedural steps to ensure an orderly and fair proceeding:

• Equal Treatment (Section 19): The overarching duty is that parties shall be treated with equality and each party shall be given a full opportunity of presenting its case.
• Pleadings (Section 24): Within the period agreed upon, the claimant must state the facts supporting their claim, the points at issue, and the relief sought, and the respondent must state their defence.
• Notice of Hearings (Section 25): The parties must be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purpose of inspecting goods, other property, or documents.

The primary duty of the arbitrator, as codified in Section 19 of the Arbitration Act, is to facilitate fairness and impartiality throughout the arbitral proceedings. The powers imposed by national law are extensive, primarily located in Section 20(3), which grants the tribunal the power to determine the admissibility, relevance, materiality, and weight of any evidence. Pursuant to Section 25, the tribunal has the power to, inter alia, manage the timetable, order document production, and dictate whether the proceedings shall be held on a documents-only basis or require an oral hearing.

For domestic litigation, the Advocates Act strictly restricts the practice of law to individuals admitted to the Roll of Advocates in Kenya. However, international arbitration sits outside this strict domestic monopoly. There are no statutory prohibitions in the Arbitration Act preventing a party in an international arbitration seated in Kenya from being represented by foreign legal counsel who are not qualified as Kenyan advocates. In practice, foreign counsel frequently appear before arbitral tribunals in Nairobi, often choosing to work in a co-counsel arrangement with local Kenyan advocates to navigate local procedural nuances, especially if court intervention becomes necessary.

Additionally, where the government of Kenya is sued by investors before the international arbitral institutions, local firms applying to represent the government are at liberty to secure the services of a foreign expert counsel should they feel the need to do so. This underscores the cross-boarder nature of international arbitration, which does not limit legal representation only to counsels from a particular jurisdiction.

Kenyan arbitration procedure departs sharply from litigation in that the Evidence Act (Cap. 80) expressly does not strictly apply to arbitral proceedings, leaving tribunals unbound by the formal rules of evidence and admissibility that govern the courts. Instead, party autonomy governs as parties are free to agree on the procedure and, failing agreement, the tribunal decides, giving it broad discretion over relevance, materiality, and weight.

There is no automatic right to broad discovery as in Kenyan civil litigation. At the pleading stage, parties file statements of claim and defence and typically annex the documents they rely on, rather than triggering wide-ranging disclosure obligations. In more complex or international matters, tribunals commonly adopt the IBA Rules on the Taking of Evidence, under which document production proceeds through targeted Requests to Produce (often organised via a Redfern Schedule), with objections on relevance, privilege, or confidentiality resolved by the tribunal. Third-party evidence sits outside the tribunal’s own powers, although Section 28 allows an application to the High Court for a summons compelling a non-party to produce documents or give evidence.

At the hearing stage, Section 25 leaves the choice between oral hearings and a documents-only process to the parties or the tribunal, though either party can generally insist on an oral hearing. Written witness statements are standard and typically substitute for examination-in-chief, with hearings centred on cross-examination – consistent with international arbitration practice more broadly (memorial-style submissions, a document-production phase, then a hearing dominated by witness and expert cross-examination).

The strict statutory rules of evidence that govern domestic litigation in Kenyan court, primarily codified in the Evidence Act (Cap 80, Laws of Kenya), do not apply to arbitral proceedings. Section 2(1) of the Evidence Act explicitly states that the Evidence Act does not apply to proceedings before an arbitrator.

Consequently, the arbitral tribunal is unburdened by strict technical rules regarding hearsay or authentication, relying instead on its broad discretion under Section 20(2) of the Arbitration Act to weigh the probative value of submitted evidence. Arbitral tribunals are nonetheless often guided by institutional arbitration rules, which include provisions on evidence and procedures.

Section 28 of the Arbitration Act provides a critical mechanism for court assistance. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from the High Court assistance in taking evidence.

The High Court may execute the request within its competence and according to its rules on taking evidence. This includes issuing a witness summons. This power is crucial because it bridges the gap between parties who are contractually bound to co-operate and non-parties who have no contractual obligation to the tribunal but can be compelled by the sovereign power of the High Court.

The Kenyan Arbitration Act (Cap 49) does not contain an express statutory provision mandating confidentiality in arbitral proceedings. However, it is an entrenched and universally accepted practice that arbitral proceedings, including the pleadings, documents disclosed during the process, and the final award, are strictly private and confidential.

This confidentiality extends to subsequent proceedings. Information from the arbitration cannot be disclosed generally. The only exceptions where disclosure is permitted are:

• with the express consent of all parties;
• when a party is seeking to enforce or challenge the award in the High Court (which invariably places the award in the public domain of court records); and
• when disclosure is compelled by law or a regulatory authority (eg, tax authorities or statutory audits).

Furthermore, if parties adopt the NCIA Rules, confidentiality is expressly codified and guaranteed within those institutional rules.

The legal frame of an arbitral award is defined by Section 32 of the Act. To be valid and enforceable, an award must meet the following strict criteria:

• Form: It must be in writing.
• Signatures: It must be signed by the arbitrator. In a multi-member tribunal, the signatures of the majority are sufficient, provided the reason for any omitted signature is stated on the award.
• Reasoning: The award must state the reasons upon which it is based, unless the parties have explicitly agreed that no reasons are to be given, or if it is an award on agreed terms (a settlement).
• Date and Seat: The award must state the date it was made and the juridical seat of the arbitration.
• Time Limits: The Arbitration Act itself does not impose a strict statutory time limit for the delivery of the award. However, institutional rules chosen by the parties may in some instances impose certain deadlines.

Subject to the substantive law of the contract, an arbitral tribunal in Kenya has wide latitude to award remedies normally available in commercial law, including compensatory damages, declarations of rights, specific performance, and permanent injunctions.

The primary limitation is public policy. Kenyan law focuses on compensation, not retribution. Therefore, punitive or exemplary damages are generally considered contrary to Kenyan public policy in standard commercial disputes and will not be awarded by a tribunal unless explicitly permitted by a specific statutory provision or the governing law of the contract.

Parties are fully entitled to recover interest and legal costs.

The rules on the award of costs are provided under Section 32B of the Act. It provides that, unless otherwise agreed, the costs and expenses of an arbitration are at the discretion of the arbitral tribunal. The general, deeply entrenched practice in Kenya, which mirrors the English common law tradition, is that “costs follow the event”. This means the unsuccessful party is generally ordered to pay the reasonable legal costs and tribunal fees incurred by the successful party. Cost sharing is not very common and usually reserved for instances where both parties have achieved partial success or at the discretion of the arbitral tribunal.

The rules on the award of interest, on the other hand, are provided under Section 32A, which vests the tribunal with the explicit statutory power to award simple or compound interest on the principal sum claimed, for any period up to the date of the award, and on the costs awarded. In Glencore Grain Ltd v TSS Grain Millers Ltd [2002] KEHC 1110 (KLR), the court affirmed the tribunal’s right to compute interest to ensure the successful party is fully indemnified for the deprivation of funds.

The cornerstone of international arbitration in Kenya is finality. For international arbitrations, there is no right of appeal on the merits or on questions of law. The tribunal’s decision on the facts and the law is final. The only recourse available to an aggrieved party under the Kenyan domestic law is an application to the High Court to set aside the award under Section 35 of the Arbitration Act. The procedure involves filing a formal application in the High Court within three months of receiving the award.

The grounds for setting aside under Section 35 are exhaustive, strictly procedural, and heavily mirror the UNCITRAL Model Law. They include the following;

• A party lacks capacity.
• The arbitration agreement under the chosen law is invalid.
• Proper notice of the appointment of an arbitrator or of the proceedings was not provided – ie, there was a lack of due process.
• The award deals with a dispute not contemplated by or falling outside the terms of the submission to arbitration.
• The composition of the tribunal or procedure was not in accordance with the agreement.
• The subject matter is not arbitrable under Kenyan law.
• The making of the award was induced or affected by fraud, bribery, undue influence or corruption.
• The award is in conflict with the public policy of Kenya.

Kenyan law does not permit parties to an international arbitration to contractually expand the scope of appeal or challenge beyond the mandatory and exhaustive grounds set out in Section 35 of the Arbitration Act. The jurisdiction of the High Court to intervene is strictly limited by statute. However, in a purely domestic arbitration, parties can expand the scope. Under Section 39, parties can explicitly agree in their contract to allow an appeal to the High Court on a “question of law” arising out of the award. Conversely, they can also draft their agreement to expressly exclude this Section 39 right of appeal.

The standard of judicial review applied by Kenyan courts when faced with a Section 35 (Arbitration Act) application is more deferential. The courts are acutely aware that they must not sit as appellate bodies disguised as reviewing courts. In the seminal case of Christ for All Nations v Apollo Insurance Co. Ltd [2002] eKLR, the High Court established the definitive position that a court cannot interfere with an arbitral award merely because it would have reached a different conclusion on the facts or the law. Errors of fact or law made by the arbitrator are risks the parties assumed when choosing arbitration. The court will only intervene if the strict threshold of procedural irregularity or public policy violation is met within the parameters set by Kenya’s Arbitration Act.

Kenya is a signatory to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Kenya acceded to the Convention on 10 February 1989. Kenya adopted the Convention with the reciprocity reservation, meaning Kenyan courts will only recognise and enforce awards made in the territory of another state that is also a contracting party to the New York Convention.

The procedure for enforcement is set out in Section 36 of the Arbitration Act. The successful party, also known as an award creditor, applies to the High Court, producing the duly authenticated original award or a certified copy thereof and the original arbitration agreement. Once recognised, the award is enforced precisely as if it were a decree of the High Court allowing for attachment of assets, garnishment of accounts, et cetera.

Under Section 37(1)(a)(iv), Kenyan courts will generally refuse to enforce a foreign award if the respondent proves that the award has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.

Regarding the ongoing set-aside proceedings, if an application for the setting aside or suspension of an award has been made to a court at the seat of arbitration, the Kenyan High Court has the discretion under Section 37(2) to adjourn its enforcement decision and may, upon application by the party seeking enforcement, order the other party to provide suitable security pending the outcome at the seat.

Section 37(2)(ii) provides that the recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused if the High Court finds that the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya. As a result, the defence of sovereign immunity is not directly available unless the grounds expressly contemplated by the Act – similar to the UNCITRAL Model Law – are met.

Jurisprudence emanating from the superior courts demonstrates that if a state or state entity attempts to raise a defense of sovereign immunity at the enforcement stage under the Government Proceedings Act, Kenyan courts employ the restrictive doctrine of sovereign immunity. The courts distinguish between sovereign acts (jure imperii) and commercial acts (jure gestionis). If a state entity entered into a commercial contract containing an arbitration clause, it has waived immunity regarding the adjudication and enforcement arising from that commercial relationship, and the defence will generally fail.

It is worth noting that the New York Convention does not list sovereign immunity as a ground for refusing to enforce an award rendered where one of the parties is a state. This is so because once a state agrees to commercial arbitration with a private party, it waives its immunity from the jurisdiction as well as from the execution of the award. Kenyan courts adopt this view.

The general approach of the Kenyan judiciary towards the recognition and enforcement of arbitral awards is robustly pro-enforcement. The standard for refusing enforcement on public policy grounds (under Section 37 of the Arbitration Act) is interpreted narrowly. Kenyan courts adhere to an internationalised standard of public policy. In cases like Tanzania National Roads Agency v Kundan Singh Construction Limited [2022] KECA 773 (KLR), the courts have held that an award will only be refused on public policy grounds if its enforcement would be patently offensive to the fundamental notions of morality, justice, and the core legal tenets of Kenya. It is not enough that the award violates a technical statutory provision or that the arbitrator misapplied the law; it must shock the conscience of the court.

The Kenyan Arbitration Act does not contain any statutory provisions recognising, providing for, or regulating class action arbitration or group arbitration. Because arbitration is strictly a creature of consent and privity of contract, combining multiple claims from disparate parties into a class action would require the explicit, written consent of every single party involved and the tribunal itself. Without such unanimous consent, class action arbitration is virtually impossible to initiate under Kenyan law.

Advocates conducting proceedings in Kenya are strictly bound by the Advocates Act (Cap 16), the Law Society of Kenya (LSK) Code of Standards of Professional Practice and Ethical Conduct, and the general duty as officers of the court. Arbitrators operating in Kenya, while not bound by a single statutory code, are universally guided by the ethical codes of the professional bodies they belong to, most notably the CIArb Code of Professional and Ethical Conduct, which mandates strict independence, impartiality, and confidentiality.

There are currently no statutory rules or explicit restrictions prohibiting third-party funding in arbitration within the Arbitration Act.

Neither the arbitral tribunal nor the High Court has the unilateral statutory power under the Arbitration Act to consolidate separate arbitral proceedings into a single proceeding. Arbitration relies on the specific consent granted in a specific contract. Consolidation can only occur if all parties to all the relevant arbitrations expressly consent to the consolidation, or if they have adopted institutional rules (like the NCIA Rules) that provide a specific mechanism for consolidation under defined circumstances.

Third parties can generally only be bound by an arbitration agreement or a resulting award in very narrow instances derived from common law doctrines: agency (acting on behalf of a principal), assignment/novation (assuming the contractual rights/burdens), or succession (heirs/liquidators stepping into the shoes of the signatory).

The national courts of Kenya do not possess the unilateral ability to bind foreign third parties (or domestic third parties) to an arbitration agreement they did not sign, as doing so would violate the fundamental consensual nature of arbitration and stretch the court’s jurisdiction beyond statutory limits.