KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
1.2 Key Industries International arbitration activity in Kenya has been more concentrated in infrastructure and construc - tion, energy and natural resources, telecommunica - tions, financial services, mining and PPP sectors. These industries account for a significant proportion of cross-border commercial transactions and foreign direct investment, with contracts frequently provid - ing for arbitration under institutional or ad hoc rules. Kenya has also experienced investment treaty arbi - tration arising from large-scale infrastructure, natural resource and energy projects involving foreign inves - tors. These sectors tend to generate more international arbitration because they involve high-value, long-term and technically complex projects with multiple stake - holders from different jurisdictions. Parties generally favour arbitration for its neutrality, confidentiality, pro - cedural flexibility and the international enforceability of arbitral awards under the New York Convention, making it the preferred dispute resolution mechanism for cross-border commercial and investment disputes. 1.3 Arbitration Institutions The NCIA is the institution most frequently used by parties seeking a Kenyan-seated international arbitra - tion process. The NCIA is the premier government- backed institution, designed to promote Nairobi as a hub for international commercial arbitration. It administers arbitrations under the highly modernised NCIA Arbitration Rules, 2015 (revised in 2022), which include provisions for emergency arbitrators and expedited procedures. No notable arbitral institutions with statutory back - ing have been established in the last 12 months. It is worth noting that parties also frequently choose inter - national institutions such as LCIA, ICC, SCIA, HKIAC and ISCID in relation to Kenyan contractors. Parties that have a preference for ad hoc arbitration can also access CIArb (Kenya Branch). 1.4 National Courts Kenya does not have a dedicated “international com - mercial court” or a separate arbitration court. Both domestic and international arbitration-related court applications are channelled through the commercial
division of the High Court, whose judges have con - siderable expertise in arbitration matters.
2. Governing Legislation 2.1 Governing Law
The primary national legislation governing both domestic and international arbitration in Kenya is the Arbitration Act, No 4 of 1995 (the “Arbitration Act” or the “Act”). The Act is closely modelled on the UNCI - TRAL Model Law and was deliberately adopted to demonstrate to the international business community that Kenya offers a familiar, standardised and predict - able legal framework for the resolution of commercial disputes. Although the Act does not materially depart from the UNCITRAL Model Law, it incorporates a number of targeted local adaptations to address historical and practical considerations. One notable departure is Section 32B, which express - ly confers on arbitral tribunals the statutory power to award interest and costs. Introduced in 2009, this pro - vision avoids the need for parties to pursue separate court proceedings to recover interest and reflects the principle that costs should generally follow the event. Another significant distinction is Section 39, which allows parties in domestic arbitrations, but not inter - national arbitrations, to agree in advance to permit a limited appeal to the High Court on a question of law where they consider this to be desirable. 2.2 Changes to National Law Currently, the only proposed legislation is the Arbi - tration (Amendment) Bill 2025, which introduces only minor changes and is not expected to significantly alter Kenya’s arbitration landscape. There has been no major statutory reform or pending parliamentary overhaul of the Arbitration Act in the past 12 months. The arbitration landscape in Kenya is primarily shaped by judicial precedent, particularly landmark Supreme Court decisions on the finality of arbitral awards. His - torically, High Court decisions on setting aside awards under Section 35 were considered final and unap -
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