International arbitration law and rules in Kenya

1.1 Arbitration is a form of dispute resolution in which parties to a dispute agree to submit their disputes to a third party who will issue a binding decision. It is a widely used mechanism of resolving commercial disputes in Kenya. Article 159(2)(c) of the Kenyan Constitution promotes different dispute resolution mechanisms, among them arbitration. 

1.2 Arbitration legislation in Kenya can be traced back to 1914 when the Arbitration Ordinance 1914 (Ordinance) was enacted. The Ordinance, which was a reproduction of the English Arbitration Act 1889, remained in force until 1968 when it was repealed and replaced by the Arbitration Act of 1968 1 Arbitration Act, Chapter 49 of the Laws of Kenya (now repealed).  which was, itself, a reproduction of the United Kingdom’s Arbitration Act, 1950.   

1.3 The Arbitration Act of 1968 remained in force until 1995 when it was repealed and replaced by the Arbitration Act, 1995 (the Arbitration Act), 2 An online version of the act is available at: <<http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%204%20of%201995#part_VI>.  which is the principal legal instrument governing arbitration in Kenya.

1.4 The Arbitration Act was modelled on the 1985 UNCITRAL Model Law, 3 The UNCITRAL Model Law on International Commercial Arbitration is a model law prepared by the United Nations Commission on International Trade Law and adopted by it on 21 June 1985. An online version of the Model Law is available at <<UNCITRAL Model Law on International Commercial Arbitration 1985, With amendments as adopted in 2006>.  a model law intended to give national legislatures a set of rules and principles governing international commercial arbitration for adoption into national laws with a view to harmonising international commercial arbitration law. 

1.5 The Arbitration Act has been amended since then to ensure that it is up to date with developments in arbitration practice, with most of the amendments being contained in the Arbitration (Amendment) Act, 2009. 4 An online version of the act is available at: http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%204%20of%201995

1.6 Besides the Arbitration Act, there are other sector-specific laws that promote arbitration in the resolution of disputes. These include the Intergovernmental Relations Act 2012, the Kenya Ports Authority Act and the Mining Act 2016.

1.7 Kenya is party to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) which is the instrument that governs the recognition and enforcement of foreign arbitral awards in Kenya.   

2.1 The Arbitration Act contains provisions relating to the composition and jurisdiction of the arbitral tribunal, the conduct of arbitral proceedings, the arbitral award and termination of arbitral proceedings, the recognition and enforcement of both local and foreign arbitral awards, and the role of the courts in respect of arbitrations in general.

2.2 The Arbitration Act applies to both domestic and international arbitrations conducted in Kenya, 5 Arbitration Act, Section 2.  with domestic arbitration being defined as arbitration in which both parties have their place of business in Kenya 6 Arbitration Act, Section 3(2).  and international arbitration 7 Arbitration Act, Section 3(3).  being defined as arbitration in which one or both of the parties has their place of business outside Kenya. 8 There are several other factors which play a role in determining whether an arbitration is to be characterised as domestic or international. These include the country where the subject matter of the dispute is and the country where a substantial part of the contractual obligations are to be performed.

3.1 An arbitration agreement is defined in Section 3 of the Arbitration Act as an agreement by which parties submit to arbitration all or certain disputes which have arisen or which may arise between them within the context of their legal relationship, whether the relationship is contractual or not. 

3.2 An arbitration agreement may be in an arbitration clause contained in a contract between the parties or in an agreement that is separate or distinct from the contract governing the relationship between the parties. Whichever form it is in, an arbitration agreement must be in writing. 9 Arbitration Act, Section 4.

3.3 An arbitration agreement will be in writing if it is contained in:

1. a document signed between the parties; 
2. an exchange of letters, mail or other communications between the parties which provides a record of the agreement; or
3. an exchange of statements of claim and defence in which the existence of an arbitration agreement is alleged by one party and not refuted by the other. 10 Ibid.

3.4    An arbitration agreement is treated as autonomous and separable from the underlying contract, where it takes the form of a clause in an underlying contract. Accordingly, an arbitration agreement may be deemed valid even where the underlying agreement is invalid, not existent or ineffective. 11 Nedermar Technology Ltd v Kenya Anti-Corruption Commission & Another [2006] Eklr.

3.5    It should be noted that not every dispute is suitable for resolution by arbitration regardless of the wishes of the parties. Any arbitral proceedings taken, or arbitral award granted, in disputes involving criminal offences, personal status such as marriage, divorce, succession, insolvency, and tax law proceedings, risk being set aside by the High Court of Kenya, as such matters are incapable of settlement by arbitration or contradict public policy. 12 Arbitration Act, Section 35(2)(b).

4.1 Parties to an arbitration agreement have the freedom to determine by agreement the number of arbitrators that they need, and the process by which they appoint them. 13 Arbitration Act, Sections 10 and 11.

4.2 If there is no agreement on the number of arbitrators, the arbitral tribunal shall consist of a sole arbitrator. 14 Arbitration Act, Section 11(2).

4.3 Where an arbitration agreement provides for two arbitrators, the agreement shall be deemed to include a provision that the two arbitrators shall appoint a third arbitrator upon their appointment unless a contrary intention is expressed in the arbitration agreement. 15 Arbitration Act, Section 11(3).

4.4 Where the parties are unable to agree on the process of appointment of arbitrators:

1. in an arbitration involving two arbitrators, each party shall appoint one arbitrator;
2. in an arbitration involving three arbitrators, each party shall appoint one arbitrator and the two arbitrators so appointed shall appoint a third arbitrator.

Grounds on which the appointment of an arbitrator can be challenged 

4.5 Section 13(1) of the Arbitration Act requires an arbitrator to disclose, when approached to potentially arbitrate a matter, any circumstances likely to compromise their impartiality or independence. The arbitrator’s obligation to disclose such circumstances does not end upon appointment but will also include the time that they are appointed and the duration of the proceedings.

4.6 The arbitrator’s appointment may be challenged only in the following circumstances:

1. if there exists circumstances likely to raise doubt as to their impartiality;
2. if they do not possess the requisite qualifications as agreed by the parties in the arbitration agreement;
3. if they are mentally or physically incapable of conducting the proceedings; or
4. if there are justifiable doubts as to their capacity to conduct the proceedings. 16 Arbitration Act, Section 13(3).

4.7 A party who has participated in the appointment of an arbitrator may only challenge their appointment on grounds of impartiality or independence for reasons which they have become aware of after the said appointment. 17 Arbitration Act, Section 13(4).

4.8 Parties to the arbitration agreement can agree on the procedure for challenging an arbitrator. 18 Arbitration Act, Section 14(1).  Where parties are unable to agree on the procedure, the party which intends to challenge the appointment has 15 days after either becoming aware of the arbitral tribunal’s composition or becoming aware of the existence of the grounds for challenge to send the arbitral tribunal a written statement of reasons for its challenge. 19 Arbitration Act, Section 14(2).  The arbitral tribunal itself renders a decision on the challenge barring a situation where there is a withdrawal by the arbitrator from his office or where the other party accedes to the challenge. 20 Arbitration Act, Section 14(2).

4.9 If the challenge before the arbitral tribunal is unsuccessful, the challenging party has 30 days after the decision to apply to the High Court of Kenya to determine the arbitral tribunal’s competence. After hearing both the challenging party as well as the arbitral tribunal, the High Court may uphold the arbitral tribunal’s decision to reject the challenge or uphold the challenge and remove the arbitrator. The High Court’s decision is final and not subject to appeal. 21 Arbitration Act, Section 14(6).

5.1 An arbitration agreement that meets the formal requirements set under Section 4 of the Arbitration Act is what gives an arbitrator (or arbitral tribunal) jurisdiction to hear and determine a dispute between parties. 22 Consolidated Bank of Kenya Limited v Arch Kamau Njendu t/a Gitutho Associates [2015] eKLR. See paragraph 11 of the judgment and Section 4 of the Arbitration Act on the formal requirements.

5.2 An arbitrator’s authority is therefore limited to the extent of the issues which the parties have set out in the arbitration agreement as capable of resolution by arbitration.

5.3 Section 17 of the Arbitration Act grants an arbitrator the power to determine his/her own jurisdiction to determine the arbitral dispute. This is generally referred to as the kompetenz-kompetenz principle. 

5.4 The Court of Appeal of Kenya in Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] eKLR, provided the following explanation of Section 17 of the Arbitration Act and the operation of the kompetenz-kompetenz principle:  

“The section gives an arbitral tribunal the power to rule on its own jurisdiction and also to deal with the subject matter of the arbitration. It is not the function of a national court to rule on the jurisdiction of an arbitral tribunal except by way of appeal under section 17(6) of the Arbitration Act as the Commercial Court in this matter purported to do. In this regard, I find that the superior court did act contrary to the provisions of section 17 and in particular violated the principle known as “Competence/Competence” which means the power of an arbitral tribunal to decide or rule on its own jurisdiction. What this means is ‘Competence to decide upon its competence’ and as expressed elsewhere in this ruling in German it is ‘Kompetenz/Kompetenz’ and in French it is ‘Competence de la Competence’. To my mind, the entire ruling is therefore a nullity and it cannot be given any other baptism such as ‘acting wrongly but within jurisdiction."

5.5 The Arbitration Act provides that a plea that the arbitral tribunal does not have jurisdiction shall be raised no later than the submission of the statement of defence. However, a party is not precluded from raising such a plea because it appointed or participated in the appointment of an arbitrator. 23 Arbitration Act, Section 17(2).

5.6 A decision by the arbitral tribunal that it has jurisdiction can be challenged before the High Court of Kenya within 30 days of the decision and the determination of the High Court on the question of jurisdiction is final with no possibility of appeal. 24 Arbitration Act, Sections 17(6) and (7).

5.7 The arbitral proceedings can commence, continue and conclude while the challenge to the jurisdiction of the arbitral tribunal is pending before the High Court. However, the arbitral award will only take effect once the High Court makes a determination on the jurisdictional challenge and in the event that the challenge is successful, the award becomes void. 25 Arbitration Act, Section 17(8).

6.1 Section 19 of the Arbitration Act entrenches the principle of equality in arbitrations and requires that each party is given a fair and reasonable opportunity to present its case. 

6.2 The 2009 amendments to the Arbitration Act also introduced a new Section 19A that imposes a duty on the parties to do all things necessary for the proper and expeditious conduct of proceedings. The effect of the newly enacted provision is to ensure that arbitral proceedings are concluded quickly and mitigates the risk of having arbitrations pending over a long period of time in a manner akin to court proceedings. 

6.3 The parties to an arbitration are free to agree upon the procedure to be adopted in arbitral proceedings 26 Arbitration Act, Section 20(1).  and, failing agreement, the arbitral tribunal is free to conduct the arbitration in a manner which it deems appropriate while having due regard to the desirability of avoiding unnecessary delay. 27 Arbitration Act, Section 20(2).

6.4 The parties are also free to agree upon the juridical seat, location and language of the arbitration. 28 Arbitration Act, Sections 21 and 23.  Where parties fail to agree on the place and/or language of the arbitration, the arbitral tribunal shall determine the place of the arbitration, having regard to the circumstances of the case as well as the convenience of the parties, as well as the languages or language of the arbitration. 

6.5 In addition, whilst it is a settled principle of arbitration in Kenya that arbitral proceedings are confidential in nature, the Arbitration Act is silent as to the confidentiality of proceedings. Conversely, the Nairobi Centre of International Arbitration Rules specifically provide that arbitrations are confidential unless the parties agree that confidentiality does not apply. 

6.6 Section 24 of the Arbitration Act provides the manner in which the parties will present their pleadings. For the claimant this is to be in the form of a statement of facts in which the facts supporting the claim, the points at issue and the relief sought are set out. The respondent will thereafter present a statement of defence providing responses to the various allegations set out in the statement of facts. 

6.7 The parties are free to agree upon the period of time within which this is to be done with no specific timelines set out in the Arbitration Act. The arbitral tribunal may also determine the timeline, bearing in mind that Section 19A of the Arbitration Act imposes a duty on parties to do all things necessary for the expeditious conduct of proceedings. 

6.8 The arbitral tribunal is empowered under Section 26 of the Arbitration Act to make certain orders where a party is in default and the said provision references certain procedural aspects of the arbitral proceedings. The section provides that, unless agreed by the parties, if, without showing sufficient cause:

1. the claimant fails to communicate his statement of claim in accordance with section 24() of Arbitration Act, the arbitral tribunal shall terminate the arbitral proceedings.
2. the respondent fails to communicate his statement of defence in accordance with section 24(1) Arbitration Act, the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations.
3. a party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on basis of the evidence before it.
4. the claimant fails to prosecute his claim, the arbitral tribunal may make an award dismissing the claim or give directions, with or without conditions, for the speedy determination of the claim.
5. a party fails to comply with any order or direction of the arbitral tribunal, the arbitral tribunal may make a peremptory order to the same effect, prescribing a time for compliance with the order.
6. a party fails to comply with a peremptory order of the arbitral tribunal to provide security for costs, the arbitral tribunal may make an award dismissing their claim.
7. where a party fails to comply with a peremptory order, the arbitral tribunal may direct that the party shall not rely on an allegation that was the subject matter of the order, draw adverse inferences from non-compliance, proceed to make an award on the basis of material before it and/or make such orders as it thinks fit as to the payment of costs incurred as a result of the non-compliance.  

6.9 The above provisions are aimed at ensuring that there is no laches 29 A party that lacks diligence or delays excessively in enforcing their right may be fettered from commencing proceedings after the lapse of a certain period, or from taking part in proceedings already filed before the arbitrator.  in the filing of pleadings as well as compliance with peremptory orders issued by the arbitral tribunal and ultimately to promote the expeditious conduct of arbitral proceedings.

6.10 Subject to any agreement to the contrary by the parties, it is the arbitral tribunal which determines whether the proceedings are to be way of oral presentation of evidence or oral argument or whether they shall be conducted on the basis of documents and other materials furnished under Section 24 of the Arbitration Act. 30 Arbitration Act, Section 25.

6.11 In Kenya Oil Co Ltd v Kenya Pipeline Co Ltd [2014] eKLR, a dispute involving the setting aside of an arbitral award, the court, while recognising that the arbitrator is the “master of procedure” under the spirit and letter of Section 20 of the Arbitration Act, held that a documents-only procedure is most clearly appropriate where all the evidence relevant to the dispute is contained in documents. 

6.12 The Arbitration Act does not empower an arbitrator to compel the attendance of witnesses and any failure by a party to produce evidence or present witnesses is likely to be dealt with under the purview of party default under Section 26 of the Arbitration Act (as discussed above). 

6.13 Section 28 of the Arbitration Act provides that the arbitral tribunal, or a party with the approval of the arbitral tribunal, may request the assistance of the High Court of Kenya in taking evidence. The High Court may execute the request within its competence and according to its rules on taking evidence.

7.1 Section 29(1) of the Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordance with the rules of law chosen by the parties as applicable to the dispute. In the event of a failure of the parties to choose the law, the arbitral tribunal shall apply the rules of law it considers to be appropriate 31 Rules of law to be considered include general principles of law, or the principles of equity as opposed to municipal Kenyan law – referenced from Bernstein’s R.: The Handbook of Arbitration Practice, Sweet & Maxwell, London, 1998.  given all the circumstances of the dispute. 32 Arbitration Act, Section 29(3).

7.2 The arbitral tribunal can make a determination on the substance of the dispute according to considerations of justice or fairness without being bound by the rules of law only if the parties have expressly authorized it to do so. 

7.3 The arbitral tribunal is also enjoined under Section 29(5) of the Arbitration Act to decide the dispute in accordance with the terms of the particular contract and consider trade customs applicable to the particular transaction. 

7.4 The following mandatory requirements apply to the form and content of the arbitral award under Section 32 of the Arbitration Act: 

1. an arbitral award shall be made in writing and shall be signed by the arbitrator or arbitrators;
2. in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the arbitrators shall be sufficient so long as the reasons for any omitted signature are stated;
3. the arbitral award shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is an arbitral award on agreed terms; 
4. the arbitral award shall state the date of the award and the juridical seat of arbitration; and
5. Subject to section 32B, after the arbitral award is made, a signed copy shall be delivered to each party.

7.5 Section 32(6) of the Arbitration Act also makes provision for a partial award which addresses only some of the issues between the parties but not all of them, while Section 32B allows the arbitral tribunal to make an additional award in respect of the costs and legal expenses in the arbitration, if parties are unable to agree on the same. 33 Arbitration Act, Sections 32(6) and 32B.

7.6 In addition to termination by way of an award, Section 33 also provides for termination of proceedings by way of an order of the arbitral tribunal where: 

1. the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute;
2. the parties agree on the termination of the arbitral proceedings; or
3. the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.

7.7 Subject to any correction, interpretation or additional award provided for under Section 34 and an application to the High Court of Kenya to set aside an award under Section 35 of the Arbitration Act, the mandate of the arbitral tribunal terminates upon the termination of the arbitral proceedings. 

7.8 The Arbitration Act also provides for termination of arbitral proceedings by way of settlement 34 Arbitration Act, Section 33.  of the dispute between the parties, in which case an arbitral tribunal can make an arbitral award on agreed terms which encompasses the settlement agreement, if requested by the parties.  

7.9 The Arbitration Act already empowers an arbitrator to decide which party should bear the costs of the arbitration. The Arbitration Rules made under the Arbitration Act provide at Rule 10 that “all fees for any proceedings under the Act shall be calculated in accordance with the scale of fees applicable to the High Court”. There have been differing opinions as to whether this rule applies only to court-annexed arbitrations under Order 46 of the Civil Procedure Rules, 2010 and the instances where the court exercises its jurisdiction under the provisions of Sections 7, 7(6), 35 and 36 of the Arbitration Act to the exclusion of arbitral proceedings which do not fall within these categories. 

7.10 Unless otherwise agreed by the parties, in the absence of an award apportioning the costs and expenses of the arbitration, each party would, pursuant to Section 32B of the Arbitration Act, be held responsible for their legal and other expenses and equally for the fees and expenses of the arbitral tribunal. 

7.11 Section 16B also provides that arbitrators enjoy immunity from claims for anything done or omitted to be done in good faith during the proceedings. 

8.1 Article 159(2)(c) of the Constitution of Kenya 2010 imposes on Kenyan courts a duty to promote arbitration (and other alternative dispute resolution mechanisms) in discharging their judicial functions. 

8.2 The Arbitration Act contains provisions that set out the role that courts play in the context of arbitration and provides, in Section 10, that courts are not to intervene in arbitration proceedings except to the extent permitted by the Arbitration Act. The circumstances where intervention by the courts is permitted by the Arbitration Act are listed below.  

8.3 Section 6(1) of the Arbitration Act allows the courts to stay any proceedings brought before them and to refer the parties in the proceedings to arbitration on application by a party upon confirmation that the dispute is subject to an arbitration agreement between the parties.

8.4 A court may decline to stay legal proceedings and refer the matter to arbitration, and in essence assume jurisdiction over the dispute:

1. if the application for reference to an arbitration is not made in time, that is, at the time when the applicant acknowledges the claim against it or enters an appearance;
2. if it finds the arbitration agreement to be null and void, inoperative or incapable of being performed; or
3. if it finds the dispute before it as not being amongst those specified by the arbitration agreement as one that would be subject to arbitration.

8.5 These grounds are exhaustive, meaning that a court may not rely on any other grounds to decline to stay the proceedings before it and refer the matter to arbitration.

8.6 Section 7 of the Arbitration Act empowers the High Court of Kenya to grant a party to an arbitration agreement an injunction or other interim order. Such an order may be helpful to a party to an arbitration in preserving the subject matter of the arbitration pending commencement or conclusion of the arbitration. This power also extends to the period before an arbitration is commenced. 35 Arbitration Act, Section 7(1).

8.7 As noted above, parties to an arbitration agreement normally have the autonomy to decide the number of arbitrators and to appoint them. 

8.8 Where a party to an arbitration agreement either delays or refuses to participate in the appointment of an arbitrator, the other party to the arbitration agreement may proceed to appoint the arbitrator.

8.9 Where an arbitrator is appointed by one party following the refusal or delay by the second party to participate in the process, the second party has a right under Section 12(5) of the Arbitration Act to apply to the High Court of Kenya to have the appointment set aside.

8.10 The High Court may, under Section 12(6) of the Arbitration Act allow such an application and set aside the appointment of the arbitrator if persuaded that there was good cause for the failure or refusal of the party in default to participate in the process of the appointment of the arbitrator.

8.11 The High Court may, upon setting aside the appointment of the arbitrator, appoint a sole arbitrator on behalf of the parties if the parties by consent so request the court, or failing such consent, upon application by either party. 36 Arbitration Act, Section 12(7).

8.12 Where, after the appointment of an arbitrator, a party becomes aware of circumstances that give rise to doubts as to the impartiality, independence, or capacity of the arbitrator to conduct the proceedings, the party may make a written request to the arbitrator seeking his/her withdrawal. If the arbitrator declines to withdraw, the party may apply to the High Court to remove the arbitrator. The High Court may grant the application and remove the arbitrator or reject it. 37 Arbitration Act, Section 14(5).

8.13 As noted above, arbitral tribunals have jurisdiction to hear and determine challenges to their jurisdiction or scope of authority. 

8.14 Where an arbitral tribunal rules as a preliminary question that it has jurisdiction, the party challenging the jurisdiction has a right to apply to the High Court to decide the matter. 38 Arbitration Act, Section 17(6).  This right is automatic if it is exercised within 30 days after the arbitral tribunal’s ruling on its jurisdiction. The High Court’s decision on the arbitral tribunal’s jurisdiction is final and not subject to appeal.

8.15 The High Court may, upon request from the arbitral tribunal or from a party with the approval of the arbitral tribunal, make orders to assist the arbitral tribunal in taking evidence. 39 Arbitration Act, Section 28.

8.16 Where the arbitral tribunal has withheld its award pending full payment of its fees and expenses by the parties, and a party feels that the fees and expenses sought are excessive, a party may apply to the High Court for an assessment of the fees and expenses properly due.

8.17 At the time of filing such an application, a party is required to deposit with the court the amount sought by the arbitral tribunal. The amount that the High Court finds to be properly payable shall be paid out of the amounts deposited in court, and the balance, if any, refunded to the applicant. 40 Arbitration Act, Section 32B.

9.1 A party to an arbitration has recourse to the High Court against the award by way of an application for setting aside the award on any of the following eight grounds set out in Section 35(2) of the Arbitration Act, namely:

1. that a party to the arbitration agreement was under some incapacity; 
2. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any agreement on that law, the laws of Kenya; 
3. the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; 
4. the arbitral award deals with a dispute not contemplated by, or not falling within the terms of the reference to arbitration, or contains decisions on matters beyond the scope of the reference to arbitration; 
5. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or failing such agreement, was not in accordance with the Arbitration Act; 
6. the making of the award was induced or affected by fraud, bribery, undue influence or corruption; 
7. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
8. the award is in conflict with the public policy of Kenya.

9.2 The grounds on which an order for setting aside may be sought are exhaustive, meaning that a court will not set aside an award on the basis of any other grounds not stipulated in Section 35(2) of the Arbitration Act.

9.3 An application seeking the setting aside of an award must be made within three months of the date of receipt of the award, failing which it may be dismissed.

9.4 The High Court’s power to set aside an award is discretionary, meaning that the High Court may, with reasons to be provided, decline to set aside an award even where an applicant furnishes proof of any of the eight stipulated grounds. 

9.5 The Supreme Court has found in its fairly recent decision in Nyutu Agrovet Limited v Airtel Networks Kenya Limited & Another [2019] eKLR that, since Section 35 of the Arbitration Act does not explicitly state that the decision of the High Court of Kenya on a setting aside application is final, an appeal can be made to the Court of Appeal in the limited circumstances where a party can show that, in setting aside an award, the High Court exceeded the grounds set out in Section 35. The Supreme Court also added that the Court of Appeal should only exercise its jurisdiction in the clearest of cases. The finding of the court was based on a detailed appraisal of the UNICTRAL Model Law as well as a comparative analysis of the laws relating to arbitration in other jurisdictions. 

9.6 Section 39(1) of the Arbitration Act grants parties to a domestic arbitration the right to file an application or an appeal at the High Court to seek a determination on a question of law, if they have agreed that such an action may be instituted.

9.7 A party may file an application if the arbitral proceedings are ongoing and a question of law has arisen. If the arbitration proceedings have come to an end and an award issued, the High Court can only be moved by way of an appeal on questions of law arising from the arbitral award. 

9.8 Section 39(2) of the Arbitration Act grants the High Court jurisdiction to hear and determine the question(s) of law placed before it through the application or appeal. 

9.10 Upon hearing the application or the appeal the High Court shall determine the question of law and either confirm, vary or set aside the arbitral award, or remit the matter back to the arbitral tribunal for reconsideration.

9.11 A further appeal against the decision of the High Court may be made to the Court of Appeal only if the parties had, prior to the delivery of the arbitral award, agreed that an appeal may be made to the Court of Appeal; or if the Court of Appeal is of the view that the relevant point of law is one of general importance. 41 Arbitration Act, Section 39(3).

10.1 Arbitral awards, whether domestic or foreign, may be recognised or enforced in Kenya by the High Court of Kenya.

10.2 The recognition and/or enforcement of domestic arbitral awards is subject to the provisions of the Arbitration Act, whilst the recognition and/or enforcement of foreign arbitral awards is subject to the provisions of the New York Convention.

10.3 A party seeking recognition or enforcement of an arbitral award is required to furnish the court with an original or certified copy of the arbitration agreement and the arbitral award.

10.4 The High Court of Kenya may decline to recognise or enforce an arbitration award on the grounds listed in Section 37(1)(a) of the Arbitration Act, namely:

1. that a party to the arbitration agreement was under some incapacity at the time of entering into the agreement; 
2. the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made;
3. the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; 
4. the arbitral award deals with a dispute not contemplated by, or not falling within the terms of the reference to arbitration, or it contains decisions on matters beyond the scope of the reference to arbitration; 
5. the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; 
6. the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; 
7. the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence;
8. the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
9. the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.

10.5 Several matters should be noted regarding the High Court of Kenya’s role in the recognition or enforcement of arbitral awards. First, the court has discretion to recognise or enforce an award. It is not bound to do so. Second, the grounds on which a court may decline to recognise or enforce an award are exhaustive. A court may not rely on any other grounds outside those provided, to decline recognition or enforcement. Third, a court will not consider the merits of the award in deciding whether to recognise or enforce it. Therefore, errors of law or fact in the substance of the award are not grounds to rely on in seeking recognition or enforcement. Fourth, the grounds on which a court may decline to recognise or enforce an award are to be restrictively interpreted since the intention of the legislature was to narrow down the grounds on which a court may refuse to recognise or enforce an award.