KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
before any step is taken to answer the substantive claim, or the right to arbitrate is treated as waived. 3.4 Validity Kenya strictly enforces the doctrine of separability of arbitration agreements from the main contract. Under Section 17 (1) of the Act, an arbitration clause that forms part of a contract shall be treated as an agree - ment independent of the other terms of the contract. Consequently, a decision by the arbitral tribunal that the main contract is null, void, or terminated does not automatically invalidate the arbitration clause. Party autonomy is the central pillar of the Kenyan Arbitration Act. Section 12 (1) explicitly states that no person shall be precluded by reason of their national - ity from acting as an arbitrator, unless the parties have otherwise agreed. Parties have absolute freedom to dictate the number of arbitrators, their professional qualifications and the method of their selection 4.2 Default Procedures When parties’ chosen arbitration appointment method fails or their contract is silent on the issue, Section 12 (2) and (3) of the Arbitration Act provides clear statu - tory default rules. For a three-arbitrator tribunal, each party appoints one arbitrator, and the two appointed arbitrators then select the third, who serves as the presiding arbitrator. If a party fails to appoint its arbitrator within 30 days of a request, or if the two arbitrators cannot agree on the third within 30 days, either party may apply to the High Court for the necessary appointment. 4. The Arbitral Tribunal 4.1 Limits on Selection For a sole arbitrator, the parties have 14 days to reach agreement. If they fail to do so, either party may apply to the High Court to make the appointment. In multiparty arbitrations (involving three or more opposing sides), the Act does not contain dedicated default procedures. Where parties have not adopted institutional rules addressing multiparty appointments (such as the NCIA Rules), the High Court exercises its
inherent jurisdiction under Section 12 to appoint arbi - trators in a manner that ensures equality and fairness among the parties. 4.3 Court Intervention The High Court intervenes under Section 12 (5) only as a supportive mechanism to prevent the frustra - tion of the arbitration agreement. When making an appointment, the High Court must have regard to any qualifications required of the arbitrator by the agree - ment of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator. The limits within which the High Court can intervene in appointment of arbitrators are provided for under the provisions of Sections 12 (5), (6) and (7). As a result, where a sole arbitrator has been appointed under subsection (4), the party in default may, upon notice to the other party, apply to the High Court within 14 days to have the appointment set aside. However, the High Court may only set aside the appointment if it is satisfied that there was good cause for the failure or refusal of the party in default to appoint his or her arbitrator in due time. This ensures that appointment of arbitrators is largely a discretion of the parties, with the High Court only exercising a supervisory role con - sistent with Section 10 of the Kenyan Arbitration Act, which provides that no court shall intervene in mat - ters governed by the Act except where so provided in the Act. 4.4 Challenge and Removal of Arbitrators Sections 13 of Kenya’s Arbitration Act governs the grounds for challenging the appointment of arbitra - tors while Section 14 governs the procedure for chal - lenging the appointment. Pursuant to Section 13, the appointment of an arbitrator may be challenged on only two grounds as follows: • Circumstances exist that give rise to justifiable doubts as to his or her impartiality and independ - ence. • The arbitrator does not possess the qualifications agreed to by the parties. Pursuant to Section 14, a party must send a written statement of the reasons for the challenge to the arbi -
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