ALTERNATIVE DISPUTE

RESOLUTION
(LLB 2101/SLS 3130)

ARBITRATION PRACTICE IN KENYA

Facilitator:
Elizabeth Mokeira, Ph.D
Advocate of the High Court of Kenya
Law Teacher: Strathmore University
emokeira@strathmore.edu
 ARBITRAL AWARD
 At the end of arbitral proceedings, the arbitral tribunal is required to
give its award.
 Under the Arbitration Act, arbitral award means any award of an
arbitral tribunal and includes an interim arbitral award.
 an award is the final determination of a particular issue or claim in
arbitration
 We have final awards and interim awards.
 An award is final if it dispossess of all issues in dispute between the
parties and is enforceable.
 Final awards are binding among the parties.
 The reading of section 32A provides that Except as otherwise agreed
by the parties, an arbitral award is final and binding upon the
parties to it, and no recourse is available against the award
otherwise than in the manner provided by this Act.
 This essentially means that once the arbitral tribunal has rendered
its final award, it becomes functus officio.
 That is, it ceases to have any further jurisdiction over the dispute and
the special relationship that exists between the parties and the
 However, there are certain circumstances where the delivery of the
final award does not render the arbitral tribunal functus officio:
 (a) Where an application has been made to the High Court to set
aside the award.
 Section 35(4) provides that the High Court, when required to set
aside an arbitral award, may, where appropriate and if so
requested by a party suspend the proceedings to set aside the
arbitral award for such period of time determined by it in order to
give the arbitral tribunal an opportunity to resume the arbitral
proceedings or to take such other action as in the opinion of the
arbitral tribunal will eliminate the grounds for setting aside the
arbitral award.
 (b) where an appeal has been preferred against the award, the High
Court may remit the matter to the arbitral tribunal for re-
consideration.
 (c) in an arbitration that was directed by the court, where the court
remits the award for reconsideration
 (d) where a party requests the arbitral tribunal for an additional
award
 An interim award is a final decision on a preliminary legal issue of
 Such preliminary or procedural issues incude:
 Jurisdiction
 Applicable laws and rules of procedure
 Security of costs
 Preservatory awards
 Then we have partial awards which are provided in section
32(6). This section provides that an arbitral tribunal may,
at any time, make a partial award by which some, but not
all, of the issues between the parties are determined.
 We also have agreed awards. This happens when the
parties to a dispute reach a settlement outside the arbitral
proceedings. Section 31 provides that if, during arbitral
proceedings, the parties settle the dispute, the arbitral
tribunal shall terminate the proceedings and, if requested
by the parties and not objected to by the arbitral tribunal,
record the settlement in the form of an arbitral award on
agreed terms.
 Further, the arbitral tribunal may make additional award
under section 34. This may happen to
 (a) correct in the arbitral award any computation errors, any
clerical or typographical errors or any other errors of a
similar nature;
 (b) clarify or remove any ambiguity concerning specific point
or part of the arbitral award
 (c) make an additional arbitral award as to claims presented in
the arbitral proceedings but omitted from the arbitral award
 For purposes of our discussion, we focus on the final award.
 Unless otherwise agreed by the parties, in arbitral proceedings
with more than one arbitrator, any decision of the arbitral
tribunal shall be made by a majority of all its members.
 The Arbitration Act does not give timelines for rendering the
final award.
 However, the parties are at liberty to set the said timelines.
Otherwise, the arbitral tribunal should make its award any
time after the hearing is concluded.
 Form and Content of the award
 According to section 32, an arbitral award shall be made in writing
and shall be signed by the arbitrator or the arbitrators.
 The arbitral award shall state the reasons upon which it is based,
unless—
 (a) the parties have agreed that no reasons are to be given; or
 (b) the award is an arbitral award on agreed terms under section 31.
 The arbitral award shall state the date of the award and the juridical
seat of arbitration
 After the arbitral award is made, a signed copy shall be delivered to
each party.
 However, under section 32B(3), the arbitral tribunal may withhold the
delivery of an award to the parties until full payment of the fees and
expenses of the arbitral tribunal is received.
 For court directed arbitrations, Order 46 Rule 10 requires the arbitral
tribunal to file the award in court within 14 days of its making.
 Besides these statutory requirements, there are implied requirements
for the award. For instance, the award must be based on the
matters referred to the tribunal, it must be certain and in line with
pubic policy. Otherwise, the award may be set aside.
 ALTERNATIVE DISPUTE
RESOLUTION
(LLB 2101/SLS 3130)

ARBITRATION PRACTICE IN KENYA

Facilitator:
Elizabeth Mokeira, Ph.D
Advocate of the High Court of Kenya
Law Teacher: Strathmore University
emokeira@strathmore.edu
 A valid award is final and binding upon the parties. Unless
otherwise agreed in writing, the effect of a valid award is to
render the dispute referred to arbitration res judicata.
 unless it is successfully challenged or appealed, a valid award is
conclusive on all issues it dealt with.
 A valid award can be recognized and enforced.
 THE ROLE OF THE COURT IN ARBITRAL PROCEEDINGS
 Section 10 of the Arbitration Act provides that except as
provided in this Act, no court shall intervene in matters
governed by this Act.
 The reading of the Act limits court’s intervention to the
following circumstances:
 Determining enforceability of arbitration agreement
 Stay of court proceedings
 Interim measures of protection
 Appointment of arbitrators
 Termination of arbitrator’s mandate
 Reviewing determination of arbitrator’s jurisdiction
 Assistance in taking evidence
 Setting aside arbitral awards
 Recognition and enforcement of awards
 Appeals
 We look at each of these instances
 Enforceability of arbitration agreement
 Where any party raises the question of whether a dispute
has arisen, or whether that dispute ought to be referred to
arbitration, the issue then becomes one of interpretation
which the court has inherent jurisdiction to determine.
 However, if the issue is raised before the arbitral tribunal,
the High Court has power to review the decision of the
arbitral tribunal upon application by any aggrieved party.
 Stay of legal proceedings
 according to section 6, A court before which proceedings are
brought in a matter which is the subject of an arbitration
agreement shall stay the proceedings and refer the parties
 This is the case unless the court finds—
 (a) that the arbitration agreement is null and void, inoperative or
incapable of being performed; or
 (b) that there is not in fact any dispute between the parties with
regard to the matters agreed to be referred to arbitration.
 Interim measures of protection
 Section 7 provides that it is not incompatible with an arbitration
agreement for a party to request from the High Court, before or
during arbitral proceedings, an interim measure of protection and
for the High Court to grant that measure.
 This means that a party can apply to the high court to grant the
orders that the tribunal can grant under section 18
 Appointment of Arbitrators
 When the parties agree that arbitral proceedings shall be
conducted by a sole arbitrator and they cannot agree on the
identity of that arbitrator, one of then can apply to the High Court
to make the appointment.
 However, this only happens once an application to set aside the
appointment of the sole arbitrator by one of the parties has been
made and granted.
 Terminating arbitrator’s mandate
 Section 15 empowers the High Court to entertain a dispute
relating to termination of the arbitrator’s mandate
 This means that if one of the parties is alleging that the
arbitrator’s mandate should terminate because of the grounds
under section 15 and the other party or the tribunal does not
agree, then this dispute shall be determined by the High Court.
 Reviewing determination of arbitrator’s jurisdiction
 Section 17 allows parties to apply to the High Court to review
decisions by the tribunal on its jurisdiction.
 Section 17(6) provides that where the arbitral tribunal rules as a
preliminary question that it has jurisdiction, any party
aggrieved by such ruling may apply to the High Court, within
30 days after having received notice of that ruling, to decide
the matter.
 Assisting the arbitral tribunal in taking evidence
 Section 28 allows the Court to assist the arbitral tribunal in
taking evidence. This may occur upon request by the tribunal
or request by a party with the consent of the tribunal.
 Appeals
 This is provided for under section 39.
 The arbitration must be domestic, the parties must agree to
such an appeal and the appeal must relate to questions of
law arising out of the proceedings or the award.
 This means that the appeal under section 39 is not an
automatic right. The parties must expressly reserve this
right in the AA.
 The appeal must be on points of law not facts.
 On an application or appeal being made to it, the High Court
shall—
 (a) determine the question of law arising;
 (b) confirm, vary or set aside the arbitral award or remit the
matter to the arbitral tribunal for re-consideration or, where
another arbitral tribunal has been appointed, to that
arbitral tribunal for consideration.
 If the parties reserved a further appeal to the CoA, then such
appeal shall lie. Otherwise the HC’s decision is final.

 In Anne Mumbi Hinga v Victoria Njoki Gathara, the
Court emphatically made the following observation; “We
therefore reiterate that there is no right for any court to
intervene in the arbitral process or in the award except in
the situations specifically set out in the Arbitration Act or
as previously agreed in advance by the parties and
similarly there is no right of appeal to the High Court or
the Court of Appeal against an award except in the
circumstances set out in Section 39 of the Arbitration Act.”
 Read Nyutu Agrovet Limited v Airtel Networks Kenya
Limited [2019] eKLR
 We shall discuss setting aside and recognition and
enforcement of awards next.

SETTING ASIDE OF ARBITRAL AWARD
 As we saw in our previous discussion, arbitral awards are final and
binding upon the parties to arbitral process.
 However, section 35 of the Arbitration Act empowers the High Court
to set aside such arbitral awards under certain circumstances.
 Setting aside means declaring a legal decision or process, in this case
the arbitral award, to be invalid
 Once an arbitral award has been set aside, it is considered null and
void and therefore unenforceable.
 Section 35 provides that recourse to the High Court against an
arbitral award may be made only by an application for setting aside
the award.
 In order to succeed, the party making the application must prove to
the court that:-
 (i) that a party to the arbitration agreement was under some
incapacity; or
 (ii) the arbitration agreement is not valid under the law to which the
parties have subjected it or, failing any indication of that law, the
laws of Kenya; or
 (iii) the party making the application was not given proper notice of
the appointment of an arbitrator or of the arbitral proceedings or
 (iv) 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; or
 (v) the composition of the arbitral tribunal or the arbitral procedure
was not in accordance with the agreement of the parties, unless
that agreement was in conflict with a provision of this Act from
which the parties cannot derogate; or failing such agreement, was
not in accordance with this Act; or
 (vi) the making of the award was induced or affected by fraud,
bribery, undue influence or corruption;
 In addition to the above grounds, the High Court on its own motion,
may set aside an arbitral award if it finds that:-
 (i) the subject-matter of the dispute is not capable of settlement by
arbitration under the law of Kenya; or
 (ii) the award is in conflict with the public policy of Kenya.
 The period for making such an application is limited to within 3
months from the date on which the party making that application
had received the arbitral award, or if a request had been made
under section 34 from the date on which that request had been
 The High Court, when required to set aside an arbitral
award, may, where appropriate and if so requested by a
party suspend the proceedings to set aside the arbitral
award for such period of time determined by it in order to
give the arbitral tribunal an opportunity to resume the
arbitral proceedings or to take such other action as in the
opinion of the arbitral tribunal will eliminate the grounds
for setting aside the arbitral award.
 In Nyutu Agrovet Limited -vs- Airtel Networks Kenya
Limited, the Supreme Court held that any party aggrieved
by the High Court’s decision has a right to appeal to the
Court of Appeal.
 In its interpretation of the right of appeal to the Court of
Appeal under section 35 of the Arbitration Act, the
Supreme Court has emphasized the need to balance
between finality and limited court intervention and
decided that leave to appeal may be granted where the
High Court decision is patently wrong.
 RECOGNITION AND ENFORCEMENT OF ARBITRAL AWARD
 Once an award has been rendered, it does not automatically entitle
the successful party to levy execution against the unsuccessful
party.
 The successful party must first lodge the award in the High Court
for recognition and enforcement.
 Once this is done, the award is recognized as a judgment of the
Court which can then be enforced on the unsuccessful party.
 Thus, recognition and enforcement of arbitral awards is an
important process in arbitral proceedings
 The primary legislation governing arbitration in Kenya is the
Arbitration Act (No. 4 of 1995) whose application spans both
domestic and international arbitration proceedings, and
enforcement of the awards.
 The Arbitration Act incorporated the United Nations Convention on
the Recognition and Enforcement of Foreign Arbitral Awards
1958 (New York Convention) to provide for the recognition of
foreign arbitral awards in Kenya.
 The Arbitration Act is based entirely on the UNCITRAL Model Law.
 Kenya ratified the New York Arbitration Convention on the
Recognition and Enforcement of Foreign Arbitral Awards on 10
February 1989 making it a party to the Convention.
 Additionally, section 36 (2) of the Arbitration Act of Kenya
stipulates that an international arbitration award shall be
recognized as binding and enforced in line with the provisions of
the New York Convention or any other convention to which
Kenya is signatory.
 See Article III of the New York Convention
 In addition to the Arbitration Act, the Civil Procedure Act also
applies to recognition and enforcement of arbitral awards
 Kenyan courts are therefore mandated to enforce foreign arbitral
awards irrespective of the state in which the award was made,
subject to limited exceptions provided under the New York
Convention and the Arbitration Act.
 Arbitral awards must be registered in court for recognition and
enforcement as a decree of the court.
 If no party has filed an application to set aside the award within
three months, the High Court will issue the decree, making it
 Enforcement of an arbitral award against a liable party can be
achieved by an application to the court, by a successful party, for the
recognition and enforcement of the award.
 The party making an for recognition and enforcement must furnish—
 (a) the original arbitral award or a duly certified copy of it; and
 (b) the original arbitration agreement or a duly certified copy of it.
 If the arbitral award or arbitration agreement is not made in the
English language, the party shall furnish a duly certified translation
of it into the English language.
 The High Court may refuse recognition or enforcement of an arbitral
award if the party making the application for refusal shows that:
 (i)a party to the arbitration agreement was under some incapacity; or
 (ii) 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;
 (iii) 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; or
 (iv)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; or
 (v) the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of the
parties; or
 (vi) 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; or
 (vii) the making of the arbitral award was induced or affected
by fraud, bribery, corruption or undue influence
 The High Court may, on its own motion, refuse recognition or
enforcement of an arbitral award if:-
 (i) the subject-matter of the dispute is not capable of
settlement by arbitration under the law of Kenya; or
 (ii) the recognition or enforcement of the arbitral award would
See article 34 of UNCITRAL Model Law on International
Commercial Arbitration and Article v of the New York
Convention
An award may be argued to be against public policy if it
is against the laws, it deals with a matter which is
against the public interest of the country or where it is
against justice and morality of the people or where it
may affect the security and safety of a nation.
Justice Ringera J (as he then was) addressed himself to
the question of what constitutes ‘public policy of
Kenya’ in the case of Christ of All Nations v Apollo
Insurance Co. Ltd [2002] and concluded that an act
is contrary to public policy if it is:
Inconsistent with the Constitution or other laws of Kenya
whether written or unwritten; or
Inimical to the national interests of Kenya; or

What amounts to a ‘public policy consideration’ has also
been expounded further by Kenyan courts. The court
in Rwama Farmers Co-operative Society Limited v
Thika Coffee Mills Limited [2020] quoted the case
of Glencore Grain Limited v TSS Grain Millers
Limited, where it was held that:
“A contract or arbitral award will be against the Public
Policy of Kenya in my view if it is immoral or illegal or
that it would violate in clearly unacceptable manner
basic legal and/or moral principles or values in the
Kenyan society. It has been held that the word illegal
here would hold a wider meaning than just ‘against
the law.’ It would include contracts or acts that are
void. ‘Against Public Policy’ would also include
contracts or contractual acts or awards which would
offend conceptions of our justice in such a manner
that enforcement thereof would stand to be offensive.”
In a recent decision in Kenya Airports Authority v World
Duty Free Company Limited [2018], the High Court set
aside a domestic award on the grounds that the arbitral
award was in conflict with public policy. Primarily, the
Court noted that the arbitral tribunal ought to have taken
note of undertones of bribery and corruption, which had
been picked up in a prior ICSID award in which the
tribunal had more or less dealt with the same subject
matter.
Further, in National Oil Corporation of Kenya Limited v
Prisko Petroleum Network Limited [2014], the court
stated that,
‘…neither the Court nor the Legislature can provide an
exhaustive list of the elements or items that constitute
public policy; are inimical to the national interest or
Kenya; or contrary to Justice and Morality. It will all
depend on the circumstances of the particular case, the
facts being pleaded, and the evidence offered in support of
In A. Ayyasamy v A. Paramasivam & Others
(2016) and Gerick Kenya Limited v Honda
Motorcycle Kenya Limited (2019) – it was made
clear that disputes like criminal offences of a
public nature, those arising out of illegal
agreements and disputes relating to personal
statuses cannot be referred to arbitration.
However, on matters divorce see the Court of Appeal
decision in case of TSJ v SHSR [2019] eKLR