KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
5.5 Breach of Arbitration Agreement As analysed in 3.3 National Courts’ Approach, the national courts take a punitive approach toward par - ties who commence litigation in breach of an arbi - tration agreement. Courts readily stop proceedings and refer the matters to arbitration where arbitration clauses exist. 5.6 Jurisdiction Over Third Parties Kenyan law upholds the doctrine of privity of con - tract and party autonomy in arbitration. As a result, an arbitral tribunal cannot assume jurisdiction over individuals or entities that are neither party to the arbitration agreement nor signatories to the contract. This is because arbitration requires the consent of the parties, who must freely choose to have their dispute determined by arbitration. However, a few courts have considered, in the absence of a submission to arbitration, limited and narrow cir - cumstances under which an arbitration agreement can bind third parties. These include the following: • agency – where a signatory signed expressly on behalf of an undisclosed or disclosed principal; • assignment/succession – where a third party has legally assumed the rights and obligations of the contract; and • piercing the corporate veil – in rare instances of proven fraud or where a subsidiary is a mere special purpose vehicle purely designed to evade arbitral obligations. These principles apply equally to domestic and for - eign third parties, though courts are very cautious in binding non-signatories to respect the consensual nature of arbitration.
protection as the tribunal may consider necessary in respect of the subject matter of the dispute. Such relief is binding and carries the force of law between the parties. The types of relief awarded typi - cally include orders for the preservation, custody, or sale of goods forming the subject matter of the dis - pute, mandatory or prohibitory injunctions, and orders securing the amount in dispute. 6.2 Role of Courts The High Court plays a vital, concurrent, and support - ive role in preliminary and interim relief. Under Section 7 (1) of the Act, it is not incompatible with an arbitra - tion agreement for a party to request, before or during arbitral proceedings, an interim measure of protection from the High Court. Parties usually approach the court when the arbitral tribunal has not yet been constituted and relief is needed urgently, or when the relief required affects third parties over whom the tribunal has no jurisdic - tion. In Safaricom Limited v Ocean View Beach Hotel Limited & 2 others [2010] KECA 346 (KLR), the court confirmed its expansive powers under Section 7 to grant injunctions to preserve the status quo pending the outcome of the arbitration. The High Court has jurisdiction to grant interim reliefs is not only limited to local arbitral tribunals. The High Court can also grant orders in aid of foreign-seated arbitrations, recognising that assets may be located in Kenya and require immediate preservation to ensure the ultimate foreign award is not rendered a paper decree. This position was affirmed by the court in the case of Safaricom Limited v Ocean View Beach Hotel Limited & 2 others , where the court stated that it may be necessary for an arbitral tribunal or a national court to issue orders intended to preserve evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration
6. Preliminary and Interim Relief 6.1 Types of Relief
proceedings themselves. Emergency Arbitrators
An arbitral tribunal in Kenya is vested with robust pow - ers to award preliminary or interim relief. Under Sec - tion 18 (1) of the Act, unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party to take such interim measure of
The Arbitration Act itself does not explicitly legislate for emergency arbitrators. However, national law respects party autonomy. Pursuant to the Arbitration (Amendment) Bill, 2024, an “arbitral award” is defined
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