KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
Additionally, where the government of Kenya is sued by investors before the international arbitral institu- tions, local firms applying to represent the govern - ment are at liberty to secure the services of a foreign expert counsel should they feel the need to do so. This underscores the cross-boarder nature of international arbitration, which does not limit legal representation only to counsels from a particular jurisdiction. 8. Evidence 8.1 Collection and Submission of Evidence Kenyan arbitration procedure departs sharply from litigation in that the Evidence Act (Cap. 80) expressly does not strictly apply to arbitral proceedings, leav - ing tribunals unbound by the formal rules of evidence and admissibility that govern the courts. Instead, party autonomy governs as parties are free to agree on the procedure and, failing agreement, the tribu - nal decides, giving it broad discretion over relevance, materiality, and weight. There is no automatic right to broad discovery as in Kenyan civil litigation. At the pleading stage, parties file statements of claim and defence and typically annex the documents they rely on, rather than trig - gering wide-ranging disclosure obligations. In more complex or international matters, tribunals commonly adopt the IBA Rules on the Taking of Evidence, under which document production proceeds through tar - geted Requests to Produce (often organised via a Redfern Schedule), with objections on relevance, privilege, or confidentiality resolved by the tribunal. Third-party evidence sits outside the tribunal’s own powers, although Section 28 allows an application to the High Court for a summons compelling a non-party to produce documents or give evidence. At the hearing stage, Section 25 leaves the choice between oral hearings and a documents-only process to the parties or the tribunal, though either party can generally insist on an oral hearing. Written witness statements are standard and typically substitute for examination-in-chief, with hearings centred on cross- examination – consistent with international arbitration practice more broadly (memorial-style submissions,
a document-production phase, then a hearing domi - nated by witness and expert cross-examination). 8.2 Rules of Evidence The strict statutory rules of evidence that govern domestic litigation in Kenyan court, primarily codified in the Evidence Act (Cap 80, Laws of Kenya), do not apply to arbitral proceedings. Section 2 (1) of the Evi - dence Act explicitly states that the Evidence Act does not apply to proceedings before an arbitrator. Consequently, the arbitral tribunal is unburdened by strict technical rules regarding hearsay or authenti - cation, relying instead on its broad discretion under Section 20 (2) of the Arbitration Act to weigh the pro - bative value of submitted evidence. Arbitral tribunals are nonetheless often guided by institutional arbitra - tion rules, which include provisions on evidence and procedures. 8.3 Powers of Compulsion Section 28 of the Arbitration Act provides a critical mechanism for court assistance. The arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from the High Court assistance in taking evidence. The High Court may execute the request within its competence and according to its rules on taking evi - dence. This includes issuing a witness summons. This power is crucial because it bridges the gap between parties who are contractually bound to co-operate and non-parties who have no contractual obligation to the tribunal but can be compelled by the sovereign power of the High Court.
9. Confidentiality 9.1 Extent of Confidentiality
The Kenyan Arbitration Act (Cap 49) does not con - tain an express statutory provision mandating con - fidentiality in arbitral proceedings. However, it is an entrenched and universally accepted practice that arbitral proceedings, including the pleadings, docu - ments disclosed during the process, and the final award, are strictly private and confidential.
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