KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
application in the High Court within three months of receiving the award. The grounds for setting aside under Section 35 are exhaustive, strictly procedural, and heavily mirror the UNCITRAL Model Law. They include the following; • A party lacks capacity. • The arbitration agreement under the chosen law is invalid. • Proper notice of the appointment of an arbitrator or of the proceedings was not provided – ie, there was a lack of due process. • The award deals with a dispute not contemplated by or falling outside the terms of the submission to arbitration. • The composition of the tribunal or procedure was not in accordance with the agreement. • The subject matter is not arbitrable under Kenyan law. • The making of the award was induced or affected by fraud, bribery, undue influence or corruption. • The award is in conflict with the public policy of Kenya. 11.2 Excluding/Expanding the Scope of Appeal Kenyan law does not permit parties to an interna - tional arbitration to contractually expand the scope of appeal or challenge beyond the mandatory and exhaustive grounds set out in Section 35 of the Arbi - tration Act. The jurisdiction of the High Court to inter - vene is strictly limited by statute. However, in a purely domestic arbitration, parties can expand the scope. Under Section 39, parties can explicitly agree in their contract to allow an appeal to the High Court on a “question of law” arising out of the award. Converse - ly, they can also draft their agreement to expressly The standard of judicial review applied by Kenyan courts when faced with a Section 35 (Arbitration Act) application is more deferential. The courts are acute - ly aware that they must not sit as appellate bodies disguised as reviewing courts. In the seminal case of Christ for All Nations v Apollo Insurance Co . Ltd [2002] eKLR, the High Court established the definitive exclude this Section 39 right of appeal. 11.3 Standard of Judicial Review
position that a court cannot interfere with an arbitral award merely because it would have reached a dif - ferent conclusion on the facts or the law. Errors of fact or law made by the arbitrator are risks the par - ties assumed when choosing arbitration. The court will only intervene if the strict threshold of procedural irregularity or public policy violation is met within the parameters set by Kenya’s Arbitration Act.
12. Enforcement of an Award 12.1 New York Convention
Kenya is a signatory to the 1958 New York Conven - tion on the Recognition and Enforcement of Foreign Arbitral Awards. Kenya acceded to the Convention on 10 February 1989. Kenya adopted the Conven - tion with the reciprocity reservation, meaning Kenyan courts will only recognise and enforce awards made in the territory of another state that is also a contracting The procedure for enforcement is set out in Section 36 of the Arbitration Act. The successful party, also known as an award creditor, applies to the High Court, producing the duly authenticated original award or a certified copy thereof and the original arbitration agreement. Once recognised, the award is enforced precisely as if it were a decree of the High Court allowing for attachment of assets, garnishment of accounts, et cetera. party to the New York Convention. 12.2 Enforcement Procedure Under Section 37 (1)(a)(iv), Kenyan courts will gener - ally refuse to enforce a foreign award if the respondent proves that the award has been set aside or suspend - ed by a competent authority of the country in which, or under the law of which, that award was made. Regarding the ongoing set-aside proceedings, if an application for the setting aside or suspension of an award has been made to a court at the seat of arbitra - tion, the Kenyan High Court has the discretion under Section 37 (2) to adjourn its enforcement decision and may, upon application by the party seeking enforce - ment, order the other party to provide suitable security pending the outcome at the seat.
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