KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
tral tribunal within 15 days of becoming aware of the constitution of the tribunal or the offending circum - stances. The tribunal itself rules on the challenge first. If the challenge is rejected by the tribunal, the chal - lenging party has 30 days to apply to the High Court to decide on the challenge. The decision of the High Court is final. This has been affirmed in various Kenyan decisions where the courts have an objective test for bias: whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. This standard helps prevent parties from using challenges merely to delay or frus - trate the arbitral process. 4.5 Arbitrator Requirements Section 13 (1) of Kenya’s Arbitration Act imposes a continuing, mandatory duty of disclosure. When a per - son is approached in connection with their possible appointment as an arbitrator, they must disclose any circumstances likely to give rise to justifiable doubts as to their impartiality or independence. This duty con - tinues throughout the arbitral proceedings. Kenyan practitioners and courts also typically rely on the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration (the Red, Orange, and Green lists) to benchmark the standards of independence and the necessity of dis - closure. The doctrine of competence-competence is a corner - stone of Kenyan arbitration law, codified in Section 17 (1) of the Act. It expressly provides that the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. 5.2 Circumstances for Court Intervention Court intervention regarding jurisdiction is carefully circumscribed. Under Section 17 (6), if the arbitral tri - bunal rules as a preliminary question that it has juris - diction, any party may, within 30 days, apply to the 5. Jurisdiction 5.1 Challenges to Jurisdiction
High Court to decide the matter. While the High Court has the power to address it, Kenyan courts exhibit a strong general reluctance to intervene and derail ongoing proceedings, preferring to uphold the tribu - nal’s mandate unless there is a glaring jurisdictional error. If the arbitral tribunal rules that it lacks jurisdiction, the Arbitration Act does not explicitly provide an avenue for the High Court to review and overturn this nega - tive ruling to compel the tribunal to hear the case. In practice, a negative ruling on jurisdiction essentially terminates the arbitral proceedings, leaving the parties to pursue their remedies through traditional litigation in the national courts. 5.3 Timing of Challenge Courts in Kenya have no first instance jurisdiction on any challenge to the jurisdiction of an arbitral tribunal. Under Section 17 (2), a plea that the arbitral tribunal does not have jurisdiction must be raised first within the Arbitral Tribunal no later than the submission of the statement of defence. A party is not precluded from raising such a plea by the fact that they have appoint - ed, or participated in the appointment of, an arbitrator. A plea that the tribunal is exceeding the scope of its authority must be raised with the Arbitral Tribunal as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. Court intervention is only available after a determina- tion has been made by the Arbitral Tribunal. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility When the High Court reviews a jurisdictional challenge under Section 17 (6) or during a setting aside applica - tion under Section 35, the standard of review regard - ing the pure interpretation of the arbitration agreement (a question of law) is generally de novo. The court must independently ascertain if a valid agreement exists. However, regarding questions of admissibility and factual findings made by the tribunal, the court largely defers to the Arbitral Tribunal generally, refus - ing to substitute its own factual analysis for that of the tribunal.
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