KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
7.2 Procedural Steps While flexible, the Arbitration Act mandates several specific procedural steps to ensure an orderly and fair proceeding: • Equal Treatment (Section 19): The overarching duty is that parties shall be treated with equality and each party shall be given a full opportunity of presenting its case. • Pleadings (Section 24): Within the period agreed upon, the claimant must state the facts support - ing their claim, the points at issue, and the relief sought, and the respondent must state their defence. • Notice of Hearings (Section 25): The parties must be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purpose of inspecting goods, other property, or documents. 7.3 Powers and Duties of Arbitrators The primary duty of the arbitrator, as codified in Sec - tion 19 of the Arbitration Act, is to facilitate fairness and impartiality throughout the arbitral proceedings. The powers imposed by national law are extensive, primarily located in Section 20 (3), which grants the tribunal the power to determine the admissibility, relevance, materiality, and weight of any evidence. Pursuant to Section 25, the tribunal has the power to, inter alia, manage the timetable, order document production, and dictate whether the proceedings shall be held on a documents-only basis or require an oral hearing. 7.4 Legal Representatives For domestic litigation, the Advocates Act strictly restricts the practice of law to individuals admitted to the Roll of Advocates in Kenya. However, international arbitration sits outside this strict domestic monopoly. There are no statutory prohibitions in the Arbitration Act preventing a party in an international arbitration seated in Kenya from being represented by foreign legal counsel who are not qualified as Kenyan advo - cates. In practice, foreign counsel frequently appear before arbitral tribunals in Nairobi, often choosing to work in a co-counsel arrangement with local Ken - yan advocates to navigate local procedural nuances, especially if court intervention becomes necessary.
as any award of an arbitral tribunal and includes an interim arbitral award, or award of an emergency arbi - trator. Additionally, it defines an “arbitral tribunal” as a sole arbitrator or a panel of arbitrators and includes an emergency arbitrator appointed pursuant to the Rules of Arbitration agreed to or adopted by the parties. This implies that, should the amendments be passed by the Parliament, the Arbitration Act will officially rec - ognise emergency arbitrators. Kenyan courts readily uphold institutional arbitration rules that provide for emergency arbitration and other similar tools of effi - ciency in arbitration. 6.3 Security for Costs Kenyan law expressly empowers both the arbitral tribunal and the courts to order parties to deposit security for costs of the arbitration proceedings. Sec - tion 18 (1)(b) explicitly states that the arbitral tribunal may require any party to provide appropriate security in connection with an interim measure ordered. Fur - thermore, under Section 7, the High Court can order security for costs as part of its broad interim protec - tive powers. The procedure of arbitration in Kenya is governed by a hierarchy of rules. The primary rules are provided under the mandatory provisions of the Arbitration Act (Cap 49), which guarantee due process, equality, and fairness. However, party autonomy lies at the core of the procedure for arbitration in Kenya. As a result, Section 20 (1) provides that the parties are entirely free to agree on the procedure to be followed by the arbitral tribunal. Parties routinely adopt institutional rules (UNCITRAL, NCIA, ICC, or LCIA rules) to govern the procedural mechanics. 7. Procedure 7.1 Governing Rules However, where the parties have failed to agree on the rules of procedure, the arbitral tribunal may conduct the arbitration in the manner it considers appropriate, having regard to the desirability of avoiding unneces - sary delay or expense while at the same time afford - ing the parties a fair and reasonable opportunity to present their cases.
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