KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
This confidentiality extends to subsequent proceed - ings. Information from the arbitration cannot be dis - closed generally. The only exceptions where disclo - sure is permitted are: • with the express consent of all parties; • when a party is seeking to enforce or challenge the award in the High Court (which invariably places the award in the public domain of court records); and • when disclosure is compelled by law or a regulato - ry authority (eg, tax authorities or statutory audits). Furthermore, if parties adopt the NCIA Rules, confi - dentiality is expressly codified and guaranteed within those institutional rules. The legal frame of an arbitral award is defined by Sec - tion 32 of the Act. To be valid and enforceable, an award must meet the following strict criteria: • Form: It must be in writing. • Signatures: It must be signed by the arbitrator. In a multi-member tribunal, the signatures of the majority are sufficient, provided the reason for any omitted signature is stated on the award. • Reasoning: The award must state the reasons upon which it is based, unless the parties have explicitly agreed that no reasons are to be given, or if it is an award on agreed terms (a settlement). • Date and Seat: The award must state the date it was made and the juridical seat of the arbitration. • Time Limits: The Arbitration Act itself does not impose a strict statutory time limit for the delivery of the award. However, institutional rules chosen by the parties may in some instances impose cer - tain deadlines. 10.2 Types of Remedies 10. The Award 10.1 Legal Requirements Subject to the substantive law of the contract, an arbi - tral tribunal in Kenya has wide latitude to award rem- edies normally available in commercial law, including compensatory damages, declarations of rights, spe - cific performance, and permanent injunctions.
The primary limitation is public policy. Kenyan law focuses on compensation, not retribution. Therefore, punitive or exemplary damages are generally con - sidered contrary to Kenyan public policy in standard commercial disputes and will not be awarded by a tribunal unless explicitly permitted by a specific statu - tory provision or the governing law of the contract. 10.3 Recovering Interest and Legal Costs Parties are fully entitled to recover interest and legal costs. The rules on the award of costs are provided under Section 32B of the Act. It provides that, unless other - wise agreed, the costs and expenses of an arbitration are at the discretion of the arbitral tribunal. The gener - al, deeply entrenched practice in Kenya, which mirrors the English common law tradition, is that “costs follow the event”. This means the unsuccessful party is gen - erally ordered to pay the reasonable legal costs and tribunal fees incurred by the successful party. Cost sharing is not very common and usually reserved for instances where both parties have achieved partial success or at the discretion of the arbitral tribunal. The rules on the award of interest, on the other hand, are provided under Section 32A, which vests the tribu - nal with the explicit statutory power to award simple or compound interest on the principal sum claimed, for any period up to the date of the award, and on the costs awarded. In Glencore Grain Ltd v TSS Grain Millers Ltd [2002] KEHC 1110 (KLR), the court affirmed the tribunal’s right to compute interest to ensure the successful party is fully indemnified for the depriva - tion of funds.
11. Review of an Award 11.1 Grounds for Appeal
The cornerstone of international arbitration in Kenya is finality. For international arbitrations, there is no right of appeal on the merits or on questions of law. The tribunal’s decision on the facts and the law is final. The only recourse available to an aggrieved party under the Kenyan domestic law is an application to the High Court to set aside the award under Section 35 of the Arbitration Act. The procedure involves filing a formal
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