KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
pealable. However, the Supreme Court took a slightly revised position in Nyutu Agrovet Limited v Airtel Net- works Kenya Limited [2019] eKLR, allowing appeals to the Court of Appeal only in exceptional circumstances – such as where the High Court exceeded its man - date, reached a manifestly wrong decision causing grave injustice, or where the appeal involves a point of law of general public importance. This narrow appel - late window was later reinforced in Synergy Industrial Credit v Cape Holdings Limited [2021] eKLR. The legal requirements for an enforceable arbitration agreement are strictly delineated in Section 4 of the Arbitration Act, namely that the agreement must be in writing. An agreement is deemed to be in writing if it is contained in a document signed by the par - ties, or if it is formed through an exchange of letters, telex, telegrams, electronic mail or other means of telecommunication that provide a verifiable record of the agreement. An arbitration agreement may also be in the form of an arbitration clause in a contract or in the form of a separate agreement. 3. The Arbitration Agreement 3.1 Enforceability Section 4 (4) of the Arbitration Act explicitly provides that a reference in a contract to a separate document containing an arbitration clause constitutes an arbitra - tion agreement, provided the contract is in writing and the reference makes the clause part of the contract. 3.2 Arbitrability Non-arbitrable matters in Kenya are not exhaustively listed in the Arbitration Act, but are determined by jurisprudence and public policy considerations. Cer - tain disputes cannot be resolved through private arbitration because they involve public interest, state functions, or the rights of third parties. These include criminal matters, where the State holds a monopoly on penal sanctions exercised through the Office of the Director of Public Prosecutions, the National Police Service, and correctional institutions.
Other non-arbitrable categories are constitutional interpretation and the enforcement of fundamental human rights, which fall under the exclusive original jurisdiction of the High Court as provided by Article 165 of the Constitution. Taxation disputes are also excluded, as the assessment and levying of taxes are statutory functions reserved exclusively for the Kenya Revenue Authority (KRA), as affirmed in the case of Okwama v Milestone Gaming Limited & 3 others [2025] KEHC 11932 (KLR). Additionally, matters of personal status – such as marriage, divorce, child custody, and bankruptcy or insolvency proceedings – are generally non-arbitrable because they operate in rem and affect third parties and broader society. Kenyan courts apply a general test to distinguish arbi - trable from non-arbitrable disputes: whether the mat - ter involves only private commercial rights that parties are free to settle between themselves, or whether it implicates public interest, statutory monopolies, or the rights of third parties. 3.3 National Courts’ Approach Kenyan courts have not developed extensive stan - dalone jurisprudence on the law governing the arbi - tration agreement as distinct from the main contract, but the operative rule mirrors the Model Law: the par - ties’ express choice of law governs, and failing that, the law of the seat applies, which, for Kenyan-seated arbitrations, means Kenyan law. On the enforcement of arbitration agreements, the courts are firmly pro-arbitration, consistent with Ken - ya’s obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (NYC), which requires recognition of arbitral agreements and enforcement of final awards. Sec - tion 6 of the Arbitration Act obliges a court to stay proceedings and refer parties to arbitration where a valid arbitration agreement covers the dispute and this position is reinforced constitutionally by dint of Article 159 (2)(c) of the Constitution of Kenya. The grounds for refusing a stay are narrow – namely, where the arbitration agreement is null and void, inoperative or incapable of being performed or if there is no genuine dispute between the parties. The main practical pitfall is timing as a stay application must be made promptly
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