The Kenya legal system follows English common law traditions and practice as a result of British colonial rule and historical ties.
There is a hierarchy of laws applicable by courts and tribunals, which include written legislation, the substance of English common law, and Kenyan customary law provided that such law is not repugnant to concepts of justice and morality or inconsistent with any written law.
The system is adversarial in nature, often involving parties taking opposite positions with a passive, impartial judge ensuring that due process is followed during trial.
Jurors and Kadhis
There is no jury system but court assessors may be called upon to assist the judge in murder cases and Kadhis (sharia judges or magistrates) are called upon to assist judges determine appeals emanating from Kadhis courts. It is worth noting that the jurisdiction of Kadhis Courts is limited to adjudication of questions on Muslim law relating to personal status and family law.
Oral and Written Arguments
Oral arguments are a practice in Kenya backed by documentary evidence and often followed by written submissions, which may be highlighted orally.
Opening and closing statements are not a part of Kenya’s legal landscape but one may seek leave from the relevant judicial officer and make the statements; in arbitration, however, parties may make opening and closing statements by consent.
Courts in Kenya operate at two levels:
Tribunals are established by Acts of Parliament to deal with sector-specific matters.
There are two courts of equal ranking with the High Court: the Employment and Labour Relations Court and the Environment and Land Court. These are sector-specific specialised courts
The Supreme Court is the highest court in the judiciary, with exclusive jurisdiction to determine presidential elections and appeals from the Court of Appeal. The Court of Appeal primarily determines appeals from the High Court
The High Court
The High Court has jurisdiction to hear all criminal and civil cases as well as appeals from the lower courts and tribunals and supervise all administrative bodies.
The High Court is divided into divisions based on subject matter as follows:
The Magistrates’ Courts have authority to hear all criminal and civil cases except as limited by law. Magistrates Courts are assigned a pecuniary jurisdiction.
Kadhis Courts deal with cases on marriage, divorce and inheritance where those involved are Muslims or submit to the courts while the Courts Martial hears cases for those serving in the military.
Tribunals are established by Acts of Parliament to supplement ordinary courts in the administration of justice.
Small claims courts have a maximum pecuniary jurisdiction of KES200,000.
The Constitution guarantees a fair and public hearing of any matter before the courts of the land or independent and impartial tribunal or body.
Court proceedings and filings are generally available for public viewing save for matters involving narcotics and psychotropic substances, terrorism, organised crime, anti-money laundering and trafficking in persons. The Children’s Act prohibits the disclosure of a child’s identity in proceedings and law reporting. A party to a matrimonial suit, upon proof that justice cannot be done otherwise, may apply for a hearing in camera, and for the prohibition of subsequent publication of the proceedings.
In the above instances, it is often important to protect the identity of witnesses or their whereabouts, to preserve morality, public order, or personal and national security.
Advocates, admitted to the roll of advocates, and with current practising certificates, have the right to act as legal representatives before courts. Parties are allowed to represent themselves, in which case they have a right of audience. In criminal proceedings, the court may, in the interest of justice, allow an intermediary to assist a complainant or an accused person to communicate with the court. Victims in criminal matters have a limited right to address court.
Public spirited Kenyans are now allowed, under the 2010 Constitution, to file public interest suits in their names in the Constitutional and Human Rights Division of the Kenyan Courts. This practice is, however, criticised by those who believe practice guidelines ought to ensure that these individuals are still represented by advocates.
A foreign lawyer may conduct a case in a Kenyan court if admitted by the Attorney General to practise as an advocate in a specific suit.
There is no legislation on third-party funding of litigation in Kenya; the law neither allows nor prohibits, there are neither prescriptions nor parameters.
The practice of third-party funding is rare in Kenya and has not permeated the legal practice landscape. This may be attributed to the majority of the population still resolving their disputes outside of formal courts. Another possibility is the availability of a national legal aid framework providing free access to legal services for the most vulnerable of Kenyan society.
Whilst there is no legal framework for third-party litigation funding in Kenya, the National Legal Aid Service is not available for civil proceedings of artificial persons over taxation, defamation, insolvency, bankruptcy and debt recovery. Accordingly, these types of cases are a good potential category of commercial matters for third-party funding.
Ultimately, cases where substantial damages are at stake and where potential recovery is significant are most likely to attract third-party funding in Kenya.
Having no jurisprudence emerging from courts or legislation in place to govern third-party litigation funding, the funding is potentially available to both plaintiff and defendant.
There are no prescriptions as to quantum of third-party funding in Kenya.
All costs in a litigation, possibly all the way to enforcement of the judgment where a party is successful, might be considered by third-party funders.
Advocates in Kenya are prohibited under the Advocates Act and the Code of Conduct and Ethics from entering into contingency or conditional fee arrangements with clients or champertous arrangements. The sharing of litigation proceeds with third parties is prohibited.
The Fatal Accidents Act (Chapter 32, Laws of Kenya) states that where a judgment is in favour of a party that is awarded under the claim, that party is entitled to the full amount exclusive of any other creditors.
The Advocates Remuneration Order (2014) prescribes the minimum fees chargeable by an advocate and prohibits undercutting or charging of fees lower than that fixed in the Order. Where the advocate and client do not agree on fees, the remuneration fixed by the Order applies.
There are no time limits regarding when a party to a litigation may obtain third-party funding.
The Civil Procedure Rules lists a demand letter as one of the documents that should accompany a claim. This suggests that a claimant should issue a demand letter prior to lodging a claim. However, the Rules do not prescribe a penalty where a demand letter is not issued.
In Stanley Kaunga Nkarichia v Meru Teachers College & another  eKLR, the lower court had denied the successful party its costs due to failure to issue a demand for payment or produce its evidence in court. On appeal, this decision was reversed as the judge found that the mere fact that a demand letter was not issued or produced in evidence does not justify an order to deny a party the costs of the suit.
It is noteworthy that pre-action conduct may result in the resolution of the dispute without the need to file a claim where it results in parties understanding each other’s position and considering an alternative dispute resolution (ADR) mechanism to reach a suitable settlement.
The Kenyan Limitation of Actions Act provides for the time period after which no action should be brought to court. The period runs from the date when a right of action accrues. However, extensions may be granted by court in certain circumstances including the claimant’s disability, mistake or fraud.
The Government Proceedings Act (Chapter 40 of the Laws of Kenya) also prescribes limitations of actions relating to government agencies.
The prescribed limitation periods include the following.
There are exceptions to the application of limitations in certain instances, such as in matrimonial property and criminal matters.
Jurisdiction is guided by the subject matter of a suit. Employment claims are filed at the Employment and Labour Relations Court, while claims relating to land are filed at the Environment and Land Court. General civil suits can be filed either at the High Court, if they have a monetary value of more than KES20 million, or at the Chief Magistrates Court if their monetary value is KES20 million and below. Other issues to consider include the location of the subject matter of the case and the residency of the parties.
See 1.2 Court System for further detail on courts’ jurisdiction.
A foreign defendant may be subject to suit in a matter within Kenya if they meet one of the following criteria.
Every suit is initiated by the filing of the relevant pleadings as provided for in the law. Certain applications will require to be moved by way of summons in chambers, others by way of originating summons or notices of motions and – for general suits– by way of plaints. Others, such as proceedings seeking dissolution of marriage or constitutional interpretation, are commenced by way of petition.
In Civicon Limited vs Fuji Electric Kimited and Marubeni Corporation, HC ARB CAUSE NO.002 OF 2020, the court struck out the pleadings and held that it will enforce requirements relating to moving courts, such as in applications for interim measures arising out of arbitrations that ought to be filed by way of chamber summons and not notices of motions.
The pleadings will set out the information as to the circumstances in which it is alleged that liability has arisen.
The Civil Procedure Rules allow for amendment of pleadings at any time before pleadings close and, thereafter, with leave of court.
When a suit has been filed, a summons shall be issued to the defendant ordering them to appear within a specified timeframe.
Service inside Kenya
Where the defendant is a corporation, the summons may be served upon an officer of the company, be left at its registered office, sent by registered mail or licensed courier service, or left at its business premises.
Where the defendant is the government, service shall be effected upon the office of the Attorney General.
Where the defendant is an individual, service shall be made on the defendant in person or on their authorised agent or advocate.
The Civil Procedure (Amendment) Rules 2020 provide new avenues for service of summons, including through email and mobile messaging services.
The responsibility of serving summons is upon the party seeking to effect service.
In Shimmers Plaza Limited v National Bank of Kenya Ltd  eKLR (Civil Application 38 of 2012), the court allowed electronic means as a form of service in contempt of court cases, which previously required personal service.
Service outside Kenya
A party may be sued outside Kenya provided that the claimant obtains leave of court to serve the summons out the jurisdiction.
A defendant who is duly served and fails to enter an appearance within the prescribed timelines risks having a judgment in default of appearance being entered in favour of the claimant. Interlocutory judgment will be entered for unliquidated claims and quantum ascertained. However, such judgments may be set aside by a court where it is satisfied that doing so is justified.
A default judgment shall not be entered against the government without leave of court.
Article 22 of the Constitution, the Civil Procedure Rules and the Consumer Protection Act grant the right to a person acting as a member of, or in the interests of, a group or class of persons to institute court proceedings.
The criterion is met when the right to relief is out of the same transaction, or series of acts or transactions, and where if separate suits were brought there would be common questions of fact or law.
Such a plaintiff is required to give notice of the suit to all such persons, either by personal service or public advertisement, as the court in each case may direct.
Any person, on whose behalf or for whose benefit a class suit is instituted or defended, may apply to the court to be made a party to such suit. Similarly, a party who wishes to withdraw their standing as a party is at liberty to do so even after being properly joined subject to costs as may be directed by court.
There is no requirement mandating the tabulation of legal costs prior to litigation. However, the Advocates Act allows for agreements on fees prior to, during or after the conclusion of proceedings.
It is generally advisable to provide clients with such cost estimates at the outset of litigation to manage a client’s expectations.
Under the Civil Procedure Rules, parties are allowed to file interim application motions before trial. These applications are not limited to case management issues as parties may apply to the court to grant such interim relief or remedy as may be just and appropriate. The principles set out in Giella v Cassman Brown & Company Ltd  EA 358) govern the granting of interim orders by the courts. These are:
There exist several instances where a party may apply for early judgment on some or all the issues in dispute.
For a liquidated claim, default judgment may be entered against a defendant who, after having been duly served with summons and the plaint/statement of claim, fails to enter an appearance or file their defence within the period stipulated under the Civil Procedure Rules. If the claim is for an unliquidated sum, interlocutory judgment will be entered and will be subject to formal proof proceedings before final determination of the case.
A party may also apply for a judgment on admission in instances where the opposing party wholly or partly admits, in its pleadings or during oral hearing, the facts giving raise to the cause of action.
A court may order to be struck out any pleading on the ground that it discloses no reasonable cause of action or defence in law and the suit may be dismissed or judgment entered accordingly.
There are instances in civil proceedings where a party may move the court to entirely dispose of all or part of a claim and thereby dispense with the need to go to a full trial. A party may raise a preliminary objection on points of law such as jurisdiction, make an application to strike out a suit or apply for an interlocutory judgment.
A party that has a stake in a matter before a court of law may be enjoined in the proceedings on their own motion or upon an application by the parties in the suit. Such a party will only be joined in the proceedings if the court is satisfied that it has an identifiable interest in the subject matter of the dispute or that they are a necessary party to enable the court to effectively make a determination on the issues in dispute.
Under the Civil Procedure Rules a court may order, where it deems it reasonable to do so, that security for the whole or any part of the costs of any defendant be given by the other party. The courts mostly make this order in cases where the claimant resides in a foreign country and has no known assets in Kenya.
It is trite law that the costs of an interim application/motion follow the event and are granted at the discretion of the court.
The party who, on the whole, succeeds in the action gets the general costs of the action but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it.
In certain circumstances, the court may for good reason order the cost of an application/motion to be paid immediately.
The period taken by a court to determine an application/motion varies from case to case. Factors such as the complexity of the application, availability of hearing dates and compliance by parties with directions given by the court play a major role in determining the amount of time taken before a court can pronounce itself on an application/motion.
There are however instances where applications can be certified as urgent and heard on a priority basis. In such instances, a court may issue interim ex parte orders and give directions on how the application shall be heard.
In civil cases, the court has power to order discovery, either upon its own motion or on the application of any party.
The scope of discovery includes:
The court has power to issue summonses and to compel the attendance of persons required on account of discovery.
The court has discretion to impose conditions or restrictions when issuing discovery orders, including a limitation of scope or directions as to which party bears the cost of discovery.
The court’s power to order discovery is not limited to the parties to the suit. Summonses may be issued to third parties whose attendance is required, either to give evidence or to produce documents or other material objects. The power to order discovery may be exercised upon application by any party or by the court on its own motion.
Penalties shall be imposed upon persons failing to comply with a discovery order including:
The Civil Procedure Rules detail how a claim is commenced and the relevant documents that must be attached. The facts giving rise to the claim, the claimant’s verifying affidavit, the evidence relied upon and witness statements are mandatory documents that accompany a claim. Summons, together with the claim documents, are then served upon the defendant, who is required to enter an appearance and file a defence and/or counterclaim or cross petition as the case may be.
Any party may at this stage request for further particulars based on matters raised in the filed pleadings.
The Civil Procedure Act and Rules provide the discovery mechanisms. However, admissibility of any evidence is governed by the Evidence Act and, as such, there is no limit as to what may be brought into discovery provided it meets the admissibility threshold in law.
Any communication made to an advocate by a client or any advice issued to a client by an advocate is privileged. The privilege may be waived by express consent of the client. The privilege does not extend to communication made in furtherance of any illegal purpose.
There is no distinction between external and in-house counsel for purposes of advocate-client privilege. However, not all communication made to in-house counsel will qualify for privilege.
A party will be allowed not to produce a document whose production would be prejudicial to public service, either by reason of the content thereof or because it belongs to a class which, on grounds of public policy, should be withheld from such production.
Furthermore, no one shall be compelled to produce documents in their possession, which any other person would be entitled to refuse to produce if they were in their possession, unless such other person consents to their production.
The principles of injunctions are outlined in the East African case of Giella vs Cassman Brown Co. Ltd 1973] EA 358. (See 4.1 Interim Applications/Motions)
Injunctions may be interim or final. Interim injunctions are granted prior to determination of a suit or application in order to:
Courts in Kenya may grant a Mareva injunction (freezing injunction) where it is proved that a defendant, with intent to obstruct or delay the execution of any decree that may be passed against them, is about to dispose of the whole or part of their property or is about to remove the whole or any part of their property from the local limits of the jurisdiction of the court. A successful party ought to prove that:
See the case of (Mareva Compania Navierra SA v International Bulkcarriers SA  2 Lloyd dis Rep 509.)
Mandatory and Prohibitory Injunctions
Injunctions may also be mandatory or prohibitory. Mandatory injunctions compel the performance of an act while prohibitory injunctions prevent the performance of an act. For mandatory injunctions, there must be special circumstances shown over and above the demonstration of a prima facie case with a high likelihood of success.
Injunctive relief may be obtained as quickly as on the same day the application therefore is made. One must file the application under a certificate of urgency setting out clearly the reasons why the relief must be granted urgently.
Injunctive relief may be granted ex parte if filed under a certificate of urgency seeking an order to dispense with service in the first instance prior to an inter partes hearing. This relief is temporary and may be set aside on application by the opposing party.
An ex parte injunction may be granted only once for not more than 14 days and may not be extended except once by consent of the parties or by the order of the court for a period not exceeding 14 days in accordance with the Civil Procedure Code.
In making an application for a temporary injunction, the applicant may provide an undertaking to pay costs or provide other security for costs in the event the injunction is discharged in the future. However, costs follow the event unless good cause is shown why they should not.
Injunctive relief will only be granted against the assets within the court’s jurisdiction.
The right to fair hearing, as guaranteed by the Constitution, demands that no adverse order is made against any party unless they have first been accorded a right of hearing.
The consequences of not obeying an order for injunction are similar to those that follow disobedience of any court order. See 9.4 Enforcement Mechanisms of a Domestic Judgment.
Trials are conducted both orally and by way of written submissions. Documents and evidence are the backbone of trials.
Witnesses are key in determining matters before Kenyan courts. However, they only can rely on what they have written in their witness statements and in the pleadings on evidence adduced before the court. Parties are not allowed to introduce claims orally. Claims have to be within the pleadings.
Expert opinion is allowed and forms part of the trial. They are involved by dint of Section 49 of the Evidence Act (Chapter 80 of the Laws of Kenya).
Application to court can be written or oral. The court can thereafter direct whether the matter will be canvassed by way of written submissions or orally. Most trials incorporate both modes of argument.
Judgments are written, but read orally to the parties in open court. Copies of the judgments can then be supplied to both parties at their request.
Applications can be in written form or done orally. There are instances where the bench can listen to the oral arguments of the parties and give its ruling immediately but then there are occasions where the bench issues its ruling at a later date, mostly on written applications depending on the complexity of the matter.
Case management is regulated by Order 11 of the Civil Procedure Rules. This is done by all parties ensuring that they have filed all the documents they will require at the hearing and have attempted any ADR mechanism that may be appropriate.
All pleadings have to be filed and served to both parties before the hearing can take place. The rule of audi alteram partem, which safeguards fair hearing and equality before the courts and law, applies at hearing.
Parties will also verify that no similar case exists in any other court or has been determined between the same parties or over the same subject matters.
A jury is not available at all. The Kenyan system has no provision for juries.
The law of evidence under the Evidence Act (Chapter 80 of the Laws of Kenya) governs what can be produced as evidence, what is inadmissible and what is the weight to be apportioned to the evidence.
Written evidence or expert reports have to be produced by the author. If the author cannot produce and verify the content therein then the courts will, in most cases, decline to accept it as evidence.
Electronic evidence has to be produced in its original form. The person producing or reproducing the same has to certify that the end-product was not tampered with. They state the mode of transmission and storage.
Hearsay is inadmissible in court.
Expert witnesses are permitted by dint of Sections 48 and 49 of the Evidence Act. Parties by themselves, or at the direction of the court, can introduce expert witnesses for clarification on matters that are not law-related but are essential to determining the issues.
The court will require expert witnesses in appropriate cases, such as those involving:
All matters are heard in open court and are therefore open to the public with the exception of family matters, child defilement cases, matters of public interest and those where witnesses need protection. In such cases the trial will be held behind closed door courts or in chambers, and only the witness and the parents of the minor are allowed in court.
The judge only gives directions and seeks clarification on matters that are not well stated. The judge in certain instances will seek clarifications regarding a matter and issue interim directions.
The judge should be impartial and therefore is the audience at the hearing. Judgments are rarely entered during hearings. The judge will in most cases give its judgment at a later date. Only directions on matters can be given at hearings. Interim applications will be determined by way or rulings issued in the matter.
Timelines for a commercial litigation matter may not be definite. They vary depending on the complexity of the matter, compliance by the parties and whether there are many interim applications by parties.
Kenya has specialised commercial and tax courts which makes the determination of such matters more expeditious. In recent times, Commercial Division judges have been known to determine matters within approximately six months to two years.
Court approval is mandatory for settlement of a suit since the matter is a matter being handled by the court. Parties will make a request to the court to be allowed to settle the matter out of court. Afterwards they reduce their settlement into a consent filed in the court.
Generally, matters in court are taken to be public records and therefore confidentiality may not apply unless expressly stated and granted. Accordingly, depending on the agreement between the parties, a settlement can be confidential.
When a matter is in court and parties decide to settle out of court, they are to attend court and record consent in the terms of the settlement. The settlement is then adopted as a court order and, therefore, execution takes the same course as court order enforcement.
Parties are bound by the settlement agreement and are bound to follow the settlement agreement as court orders.
When parties are defiant and one refuses to adhere to terms agreed, the other extracts a decree arising out of the consent order and involves the auctioneer to attach the property of the judgment debtor, or one can bring the other party to court for contempt of court order.
When the matter or a dispute is not before court, the settlement agreement reached through, for instance, a mediated session is treated as a contract and therefore one can sue for breach of contract.
Setting aside settlement agreements is done by making a formal application to court requesting that the agreement be set aside. This is provided for in the Civil Procedure Rules.
However, settlement agreements will only be set aside in certain circumstances (eg, where a party applying to set aside can prove that there was fraud, or they agreed under coercion or duress).
Under Kenya’s legal system there are a raft of awards available to a successful litigant. However, it is prudent for a party to set out explicitly the remedy which they seek from the court in their statement of claim/plaint. The remedies include:
There are various types of damages available in Kenya’s legal system. These include general, special, exemplary and aggravated damages.
Special damages must be pleaded and proved by a litigant before they are awarded by a court.
General damages are monetary awards with no particular value attached. They are without an upper limit and are awarded at the discretion of the court.
Exemplary damages are punitive in nature and are awarded in addition to compensatory damages. They are granted by a court on rare occasions where their settled conditions have been met.
Aggravated damages are awarded where it is determined that the defendant acted out of improper malice.
Generally, a court may award interest from when the suit was filed, or from when the judgment was entered, until settlement in full.
In instances where a dispute is over breach of a contract with an interest clause, the court could order that interest accrues from the date of the breach. Courts adhere to the contractual arrangements of parties, often the percentage of interest payable and its terms are prescribed in the agreement between the parties.
Once a judgment is passed by a court and a decree is extracted by a successful litigant, the same can be executed by:
Foreign judgments may gain recognition in Kenya, by dint of the Foreign Judgments (Reciprocal Enforcement) Act 1984, if made in countries that accord reciprocal treatment to judgments given in Kenya.
Procedure for Judgments Made in Reciprocating Countries
An application for recognition of the foreign judgment must be made to the High Court within six years of its delivery.
Attached to the application, should be:
If satisfied, the High Court shall pass an order that the foreign judgment be registered in Kenya.
The judgment then becomes capable of execution as though it was obtained in Kenya ab initio.
Procedure for Judgments Made in Non-reciprocating Countries
Where there is no reciprocal agreement between Kenya and the foreign jurisdiction, a judgment debtor shall file a plaint to the High Court describing the claim and judgment debt. The same shall be supported by a certified copy of the foreign judgment and the usual documents accompanying a claim before the High Court.
If successful, the judgment then becomes capable of execution as a Kenyan judgment.
The right to appeal must be expressly provided for in statute or in the Constitution. Parties may appeal an original decree or order of a subordinate court to the High Court as provided by the Civil Procedure Act (Chapter 21 of the Laws of Kenya) and the Civil Procedure Rules.
A party aggrieved by the original decree or order of a subordinate court may prefer an appeal to the High Court on a question of law or fact. However, in exercising a right of further appeal to the Court of Appeal, the appeal must address a question of law only.
An appeal from the original decree or order of the High Court may be preferred to the Court of Appeal unless provided otherwise under the law. However, a right of further appeal to the Supreme Court shall only exist as of right in cases involving the interpretation or application of the Constitution of Kenya. In any other case, the right of further appeal to the Supreme Court shall lie where the Court of Appeal or the Supreme Court certifies such a matter to be of general public importance.
Please refer to 1.2 Court System for information on the Kenyan court hierarchy.
The right to appeal is donated by the Constitution and the Civil Procedure Act and Rules.
An appeal shall lie to the High Court from any original decree from any subordinate court on a question of fact or law.
An appeal shall lie to the High Court from a decree passed by a subordinate court of the first class on an appeal from a subordinate court of the third class, on a question of law only.
An appeal from the High Court shall lie to the Court of Appeal.
Where any party aggrieved by a preliminary decree does not appeal from that decree, they shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
The Civil Procedure Act prescribes decrees against which an appeal may be preferred as a matter of right and those where an appeal shall require the consent of the court.
An appeal from the original decree or order of the High Court lies to the Court of Appeal. A second appeal to the Court of Appeal shall be on the interpretation or application of the Constitution or matters of public interest as certified by court.
An appeal shall be filed within the prescribed period from the date of the decree or order appealed against, unless such period is extended by a court where sufficient cause is demonstrated. In Kenya, parties generally have 30 days within which to file the notice of appeal. An appellant shall issue a notice of appeal prior to filing the appeal.
The appellant shall file a memorandum of appeal setting out the grounds upon which the appeal is premised. The certified copy of the judgment and decree or order appealed against shall be annexed to the memorandum.
The memorandum shall be served upon the respondent (or respondents) who is (or are) required to file a reply within seven days of service.
The appellate court shall only consider whether the judge who issued the impugned judgment:
Where the appeal is against a money decree, the appellant may be required to deposit the decretal amount or furnish the security required by the court.
The appellate court has powers to
The courts exercise discretion when awarding costs. Generally, costs are awarded to the successful litigant and are paid by the losing party.
The court may award interest on costs at the court rates as guided by the Central Bank of Kenya. Compound interest is awarded depending on the evidence on record, such as the existence of a bank loan at stake to which compound interest is payable or parties' contracts specifying its payment.
A party-to-party bill of costs – setting out instruction fees, filing fees and other incidental expenses – has to be filed with the deputy registrar who will be responsible for its taxing. The losing party may oppose the whole or part of the bill of cost before the deputy registrar and, if a party feels aggrieved by the costs as granted, it may appeal to the High Court.
Under the Civil Procedure Act, courts have a wide berth to exercise discretion when deciding on costs. Additionally, civil procedure rules provide that the costs shall follow the event although a court may order otherwise if there is a good reason to do so and, among other things, order each party to pay their costs.
Generally, courts will direct that parties bear the owns costs in public interest and family matters.
Courts can award interest on costs at any rate provided that it does not exceed 14% per annum. In most cases, courts order interest at the court rate of 12% per annum or remain silent on the issue of the exact percentage and merely state "at court rates". In instances where the court has not pronounced itself on the percentage of interest, the applicable rate will be 6% per annum.
ADR is widely embraced in Kenya in all its forms. The 2010 Kenyan Constitution granted it great impetus by recognising various forms, other than courts, for resolving disputes and urging the judiciary to recognise these, including traditional dispute resolution mechanisms.
Since 2010, Kenya has:
Increasingly, many pieces of legislation are being amended to review the dispute resolution clauses and to ensure compliance with the Constitution, which encourages ADR. The Intergovernmental Relations Act creates an intergovernmental technical committee to spearhead resolution of intergovernmental disputes by ADR.
The most popular methods of ADR in Kenya include arbitration, adjudication and mediation.
ADR is entrenched in the Constitution of Kenya, which encourages the courts to use ADR with a view to increasing access to justice. The Civil Procedure Act stipulates that suits may be referred to ADR where the parties agree or where the court considers ADR suitable. The judiciary, in 2016, introduced court-annexed mediation, under which programme court files are subjected to mandatory screening for suitability for resolution by mediation. While it is not compulsory, parties are encouraged to consider mediation, the costs of which are part of the judiciary's budget, thus increasing access by the public to affordable mediation.
Under Section 11 of the 2015 court-annexed mediation rules, there are potential sanctions for unreasonably refusing ADR, such as:
The main institutions offering and promoting ADR are:
These are well organised institutions offering training and promoting ADR. Many others have since sprouted.
The 2010 Constitution of Kenya, the Arbitration Act 1995, the NCIA Act 2013 and treaties and conventions (such as the East African Community Treaty 2005 and the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)) are all part of Kenya’s arbitration law. The Arbitration Act 1996 has incorporated all provisions from the UNCITRAL Model law and the legislation to enhance access to justice.
Matters of national interest are usually settled by the national courts as a matter of public policy (eg, criminal matters, sexual offences and civil matters that may involve criminal liability such as corruption, bribery or fraud cases).
Divorce cannot be arbitrated.
There are no laws restricting state entities from entering into arbitration agreements
The Arbitration Act 1995 sets out grounds for challenge of an arbitral award which include:
A domestic arbitral award has to be adopted as a court order in the High Court to be enforceable
Kenya is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations General Assembly in New York on 10 June, 1958 (the "New York Convention"). It ratified the convention in 1989 and domesticated it in the Arbitration Act 1995 (the Arbitration Act). Kenyan courts enforce foreign arbitral awards irrespective of the state in which the award was made, in accordance with the law unless the award is contrary to its public policy, as was held in Miscellaneous Civil Application N.171 of 2012 Tanzania National Roads Agency v Kundan Singh Construction Limited  eKLR, where failure by the tribunal to apply the governing law chosen by the parties was held as being against Kenyan public policy.
There are several changes to dispute resolution anticipated in Kenya. One involves the expansion of court-annexed mediation across the country and the application of mediation in more cases than the original family and commercial contexts, commencing with employment matters.
Labour matters are to be resolved in the first instance by conciliators, the government gazetted conciliators in August 2019.
There is a move to have a National Alternative Dispute Resolution Policy by mid-2021.
There are several bills dealing with ADR in Parliament, such as the ADR Bill 2019 and the Mediation Bill 2020.
It is proposed that small claims courts be operationalised.
The launch of the Alternative Justice Policy, in August 2020, by the Chief Justice now paves the way for administration of justice that takes culture, practices and beliefs (among other things) into account.
Currently, the main political debate is over possible changes to the Constitution through an initiative referred to as the Building Bridges Initiative (BBI). This has made several recommendations on mediation, including the to link elders to formal mediation processes recognised by the legal system through training and certification opportunities.
The Chief Justice directed court closure in March 2020 and only reopened in June 2020. The closure affected access to justice and the lockdown witnessed an increase in gender-based violence cases and family matters which were directed to be fast tracked.
On a brighter note, this physical closure necessitated the automation of court processes, including the introduction of the electronic filing system in July 2020 and the adoption of online platforms for the conduct of court hearings. The effect has been a reduction in operating costs (eg, costs of travel) as one can now access several courts in several counties from the comfort of one’s desk without the need to be physically present at the court premises. The Kenyan government did not pass any emergency orders or legislation suspending the operation of limitation periods.
Some measures introduced in Kenya include the following:
Key Developments in Kenyan Litigation Practice
The trends and developments in litigation practice in Kenya in 2020 are mainly attributable to changes introduced by either amendment to, or enactment of, legislation affecting litigation practice. This year, there has been a steady development of legislation and regulation that directly affects the practice of litigation and general dispute resolution; with some emanating from a total regime overhaul while others stemmed from judicial precedents, particularly from the Supreme Court of Kenya.
The year 2020 marked a paradigm shift in the practice of litigation. Further coupled with the outbreak of the COVID-19 pandemic, litigation was greatly affected; and there is no better way to ameliorate the effect of a pandemic than an accommodating legal structure that caters for the practical situations that face the community of practitioners.
Notable recent developments in litigation in Kenya this year include:
While these identified trends are not exhaustive, they show the country’s resilient law reform and the way in which the clamour for unending change affects litigation practice, which forms a key facet of the Kenyan legal system.
Virtual Proceedings: The New Normal
The COVID-19 pandemic has greatly impacted litigation in Kenya. In a practice area that depends on physical presence in courts and tribunals, the new situation made it hard or impossible to access courts, without endangering the lives of litigants, practitioners and judicial officers. In March 2020, the Honourable Chief Justice of Kenya announced a raft of measures, agreed to by the National Council for the Administration of Justice, that were aimed at preventing the spread of COVID- 19. Some of the measures that the Council recommended were the downsizing of judicial services and the urging of judicial officers to deliver rulings and judgments virtually.
To this effect, judgments and rulings were delivered to parties upon presentation of written consent to do so. This became the new normal and, to date, most judgments and rulings are now delivered to parties via their respective emails.
Additionally, in an attempt to scale up court services, the Council required court station heads to embrace the use of technology, not only for the delivery of rulings and judgments but also in the conduct of other judicial processes. Towards this end, the High Court and Court of Appeal stations in Nairobi started off with the use of Skype for mentions and hearings. This slowly escalated to stations outside Nairobi; graduating first to the use of Zoom and then to the present-day use of Microsoft Teams across the country. Across Kenya, most courts have embraced technology in conducting their judicial proceedings.
The use of virtual platforms for judicial practice is, indeed, a trend and a game-changer in litigation practice, and even post-pandemic, there is a likelihood that physical court attendance will be reduced significantly, especially for non-contentious mentions and court call-overs. Physical attendance may only be allowed in the future for full hearings with large volumes of documents.
COVID-19 Suppression – Litigation Practice Direction and Notes
In compliance with the directives of the National Council for Administration of Justice on the containment and suppression of the spread of COVID-19, the judiciary issued practice notes and directions to facilitate seamless legal practice even in the wake of restrictions intended to curb the spread of COVID-19. The Supreme Court, Court of Appeal and the High Court recently published several practice directions to give effect to the directive. Such practice notes include the requirement to file documents in soft copies, the requirement for an advocates’ stamp on each page of court papers ( ostensibly to prevent the likely upsurge of masquerading) and the total elimination of physical attendance at the Court of Appeal and the Supreme Court except in special circumstances.
Furthermore, these practice directions and notes have:
The fixing of dates for trial, amongst other registry activities, is also conducted virtually through the platforms that have, from time to time, been provided to parties. Just as virtual hearings are likely to last post COVID-19, so are the systems established under the auspices of curbing the spread of COVID-19. The aggressive employment of technology in litigation practice, is truly a silver lining of the pandemic.
Amendments to the Civil Procedure Rules, 2010
The Civil Procedure Rules are the set of rules that govern legal practice in the Magistrate Courts, the High Court, the Environment and Land Court and other tribunals. Since its enactment in the year 2010, the Statutory Instruments Act would have rendered them revoked in July 2020 if they were not re-enacted or amended.
The Rules Committee of the Judiciary therefore drafted the amendments which came into effect on 26 February 2020. The amendment to the Civil Procedure rules introduced a number of mechanisms that accommodate legal practice in this digital era; including the requirement that upon suing a party, the plaintiff or applicant is enjoined to indicate their physical, postal and email addresses together with their telephone number(s) as well as the contact details of the party being sued. Additionally, with the introduction of Order 5 Rules 22B and 22C, parties are allowed to effect service of court documents through email and other mobile-enabled messaging services such as Twitter, WhatsApp, Telegram and even on Short messaging services.
These amendments also replaced what was known as pre-trial with what is now known as case management, to accommodate the use of technology in case management for the purpose of ensuring an expeditious determination of suits.
These amendments no doubt changed the trajectory of civil litigation in Kenya and have enhanced access to justice as they have eliminated the costs associated with substituted modes of service such as advertisement in the local newspapers.
The Double Enactment of the Supreme Court Rules, 2020
Since its enactment in 2011, the Supreme Court Act’s implementation has been made possible by the directions that have, from time to time, been issued by courts. Being the apex court that exclusively handles the Presidential election petition, the Supreme Court previously developed the Presidential petition rules that have guided the conduct of the presidential election petitions.
However, with the increase in public interest, and other cases that raise matters of general public importance, the Chief Justice, on 14 February 2020, gazetted the Supreme Court Rules of 2020. These provided for the management of documents through sealing, case management, the making of interim applications to the Court, appeals, and procedures on Petitions for State of Emergency.
These rules were nevertheless short- lived. On 4 June 2020, the Chief Justice published the Supreme Court Rules 2020, which revoked the ones enacted in February. Though without any major changes, the new rules sought to make provisions clearer and are expected to guide and facilitate the conduct of proceedings in the Supreme Court; a trend that would most likely enable legal practitioners and litigants to better their understanding of the apex court’s proceedings.
The Introduction of the Matrimonial Proceedings Rules, 2020
The enactment of the Marriage Act of 2014 repealed a raft of legislation that guided marriages and divorces, and which relied heavily on precedence and practice drawn from the past regime. These included:
The Marriage Act of 2014, in repealing the Matrimonial Proceedings Act, provided a procedure for conducting matrimonial proceedings. Without a procedural framework to give this effect, the practice in family courts would have been irregular and unpredictable. This will no longer be the situation following the promulgation of the Marriage (Matrimonial Proceedings) Rules, 2020, on 8 July 2020, that have the effect of regularising practice in the judicial corridors in so far as petitions for divorce or annulment of marriages are concerned. These rules have had the effect of simplifying divorce proceedings and are a game-changer for family law litigation practitioners.
Trends in Insolvency Practice
The year 2020 has seen a number of companies being unable to settle their debts, a situation exacerbated by COVID-19. Insolvency practice has therefore been a go-to as a mechanism of corporate protection. However, unlike the past, when insolvency proceedings were used as a mechanism for debt collection – including disputed debts – the Kenyan courts have now emphasised that insolvency proceedings should not be used as a mechanism to settle disputed debts.
The courts have embraced the paradigm shift introduced by the Insolvency Act of 2015, which underscores rehabilitation of distressed companies through various mechanisms including administration as opposed to liquidation, which has been termed by various scholars as a death sentence for companies. For instance, a Kenyan court issued an administration order to Nakumatt Holdings Ltd, one of the major retail supermarkets in Kenya.
Amendment of the Small Claims Act
As a means to decongest the Kenyan courts, Parliament, in 2016, enacted the Small Claims Court Act that, among other things, established the Small Claims Court that comprised adjudicators appointed by the Chief Justice to handle civil disputes whose value does not exceed KES200,000. On 23 August 2019, the Chief Justice enacted the Small Claims Court Rules, which provide for practical aspects of proceedings in the Small Claims Court.
The pecuniary jurisdiction of the Small Claims Court Act has now been increased from the KES200,000 to KES1 million following the assent to the Small Claims (Amendment) Act, 2020.
What is now left is for the Chief Justice to appoint adjudicators to preside over the Small Claims Court. Once the Small Claims Court is operational, appropriate small claims will be referred to the Court from the resident Magistrates Courts.
Judicial Guideline on Work Injury Benefits Proceedings
The dispute resolution forum for work injury benefits disputes has, for a long time, been unclear. The Work Injury Benefits Act (WIBA) provides that such disputes be referred to the Director of Occupational and Safety Services at the Ministry of Labour, who has a number of administrative powers including the appointment of a medical practitioner to conduct tests on an injured employee. In 2008, the Law Society of Kenya filed a Petition challenging the constitutionality of this and other provisions of the Act and the High Court (Hon JB Ojwang (now Rtd)) held that Sections 4, 7(1) and (2), 10(4), 16, 21(1), 23(1), 25(1) and (3), 52(1) and (2), and 58(2) of the Act were inconsistent with the former constitution.
This decision elicited an appeal in the Court of Appeal filed in the year 2011, and on 17 November, 2017, the Court of Appeal (Waki, Makhandia, Ouko JJA) allowed the appeal only to the extent that it set aside the High Court’s orders declaring Sections 4, 16, 21 (1), 23(1), 25 (1) and (3), 52 (1) &(2) and 58(2) of the Act to be inconsistent with the former Constitution. It found, however, that Section 7 of WIBA (in so far as it provided for the Minister’s approval or exemption) and Section 10 (4) thereof were inconsistent with both the former and the 2010 Constitution.
An appeal was subsequently filed in the Supreme Court, which, on 3 December 2019, in Law Society of Kenya v Attorney General & another  eKLR upheld the Court of Appeal’s decision. The import of this decision, as subsequently clarified by the judiciary after consultations with several stakeholders, agreed that matters that were filed in court before the date of the decision would proceed in court in line with the doctrine of legitimate expectation, while the rest would be filed with the Director of Occupational Safety and Health Services under the Act.
This clarification by the courts in the landmark decision of the Supreme Court has significantly changed the tradition of handling such matters and more measures are expected to streamline this area of practice in the future.
Streamlining Practice in the Public Procurement and Disposals Sector
The practice of public procurement and disposal litigation is a trend with whose pace practitioners in Kenya have to keep up. With the increase in government investment in the private sector in the area of service delivery, procurement regulations in government institutions is an acceptable norm; and with public officers avoiding any situations that would expose them to criminal prosecutions, more attention and care has been paid to compliance.
On 22nd April 2020, the Cabinet Secretary for the Treasury promulgated the Public Procurement and Asset Disposal Regulations 2020 which has set a clear mechanism for, among other things, operations in the Public Procurement Review Authority and Board. With this new enactment, there is likely to be an increase in facilitative proceedings; even in the wake of litigation challenging the constitutionality of these rules.
Introduction of a Data Protection Regime
The Data Protection Act was assented to on 8 November 2019, with a commencement date of 25 November 2019. This legislation, whose main object is to provide for the protection of one’s data held by both the private and public entities, has formalised the regime in a sector that has previously been relying on the EU's General Data Protection Regulation.
The establishment of the office of the Data Commissioner as the officer in charge of implementing the provisions of this legislation is seen to be a gain towards the actualisation of the drafters' intentions. As Parliament presently vets the Presidential nominee to the position, there is increasing awareness of data protection and privacy issues; which will no doubt have an impact on the future of legal practice.
Waiver of Court Filing Fees
On 20 April 2020, the Cabinet Secretary for the Treasury, in an exercise of the powers conferred upon him under Section 77 of the Public Finance Management Act, waived the payment of court filing fees for commercial disputes where the value of the suit is KES1 million or less.
This measure has therefore increased access to justice. From the estimated filing fees of KES70,000 or more to nil, litigants are therefore most likely to frequent judicial intervention.
Requirement for Declaration of Beneficial Ownership of Companies
On 5 July 2019, the President of Kenya assented to the Statute Laws (Miscellaneous Amendments) Act 12 of 2019. This legislation introduced a new section 93A into the Companies Act, 2015 that requires every company to register its beneficial owners. This was subject to the enactment of the regulations to give effect to this new piece of legislation.
The Companies (Beneficial Ownership Information) Regulations, 2020, published by the Attorney General on 18 February 2020, then allowed the Registrar of Companies to establish a beneficial owners electronic register that was operational from 13 October 2020. Every company is therefore required to submit a copy of its beneficial owners’ register within 30 days of its preparation.
Since a majority of commercial litigation is driven by companies and other incorporated entities, this requirement will no doubt change how these are done; and with the practice of institution of derivative suits and shareholders’ protection, beneficial owners of companies are set to strategically use the litigation forum to better advance their beneficial interests in companies, even in the absence of a shareholding in a company.
County Attorneys: A Step up to Public Legal Services
Devolution brought with it gains and losses. One of the gains, as can be seen from the Constitution of Kenya, 2010, is the devolution of services. However, with the Attorney General as the official chief legal adviser to the government, counties had been forced to resort to the State Law Office, thereby defeating the essential purpose of devolution.
However, with the recent enactment of the Office of the County Attorney Act, which was assented to on 9 July 2020, there is a clear framework to enable the devolved units to administer their legal issues in a structured manner.
This is an important development in the litigation sector as suits filed for and against county governments can better be administered under this new framework.