KENYA Law and Practice Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
13. Miscellaneous 13.1 Class Action or Group Arbitration The Kenyan Arbitration Act does not contain any statu - tory provisions recognising, providing for, or regulating class action arbitration or group arbitration. Because arbitration is strictly a creature of consent and privity of contract, combining multiple claims from disparate parties into a class action would require the explicit, written consent of every single party involved and the tribunal itself. Without such unanimous consent, class action arbitration is virtually impossible to initiate under Kenyan law. 13.2 Ethical Codes Advocates conducting proceedings in Kenya are strictly bound by the Advocates Act (Cap 16), the Law Society of Kenya (LSK) Code of Standards of Professional Practice and Ethical Conduct, and the general duty as officers of the court. Arbitrators oper - ating in Kenya, while not bound by a single statutory code, are universally guided by the ethical codes of the professional bodies they belong to, most notably the CIArb Code of Professional and Ethical Conduct, which mandates strict independence, impartiality, and confidentiality. 13.3 Third-Party Funding There are currently no statutory rules or explicit restrictions prohibiting third-party funding in arbitra - tion within the Arbitration Act. 13.4 Consolidation Neither the arbitral tribunal nor the High Court has the unilateral statutory power under the Arbitration Act to consolidate separate arbitral proceedings into a single proceeding. Arbitration relies on the specific consent granted in a specific contract. Consolidation can only occur if all parties to all the relevant arbitra - tions expressly consent to the consolidation, or if they have adopted institutional rules (like the NCIA Rules) that provide a specific mechanism for consolidation under defined circumstances. 13.5 Binding of Third Parties Third parties can generally only be bound by an arbi - tration agreement or a resulting award in very nar - row instances derived from common law doctrines:
Section 37 (2)(ii) provides that the recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused if the High Court finds that the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya. As a result, the defence of sovereign immunity is not directly available unless the grounds expressly contemplated by the Act – similar to the UNCITRAL Model Law – are met. Jurisprudence emanating from the superior courts demonstrates that if a state or state entity attempts to raise a defense of sovereign immunity at the enforce - ment stage under the Government Proceedings Act, Kenyan courts employ the restrictive doctrine of sovereign immunity. The courts distinguish between sovereign acts (jure imperii) and commercial acts (jure gestionis). If a state entity entered into a com - mercial contract containing an arbitration clause, it has waived immunity regarding the adjudication and enforcement arising from that commercial relation - ship, and the defence will generally fail. It is worth noting that the New York Convention does not list sovereign immunity as a ground for refusing to enforce an award rendered where one of the parties is a state. This is so because once a state agrees to commercial arbitration with a private party, it waives its immunity from the jurisdiction as well as from the execution of the award. Kenyan courts adopt this view. 12.3 Approach of the Courts The general approach of the Kenyan judiciary towards the recognition and enforcement of arbitral awards is robustly pro-enforcement. The standard for refusing enforcement on public policy grounds (under Sec - tion 37 of the Arbitration Act) is interpreted narrowly. Kenyan courts adhere to an internationalised stand - ard of public policy. In cases like Tanzania National Roads Agency v Kundan Singh Construction Limited [2022] KECA 773 (KLR), the courts have held that an award will only be refused on public policy grounds if its enforcement would be patently offensive to the fundamental notions of morality, justice, and the core legal tenets of Kenya. It is not enough that the award violates a technical statutory provision or that the arbitrator misapplied the law; it must shock the con - science of the court.
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