KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
7.8 General Timeframes for Proceedings The duration of commercial proceedings varies depending on the complexity of the dispute, the volume of evidence and the efficiency of case man- agement by the court. Generally, from the filing of a claim to final judgment, a commercial matter may take between 18 months and three years to conclude at the High Court, though more complex cases, particularly those involving multiple parties or interlocutory appli- cations, may extend longer. Appeals to the Court of Appeal may take an addi- tional one to two years before determination, and fur - ther appeal to the Supreme Court is available only on matters of general public importance or constitutional interpretation. Court approval is generally not required for the set- tlement of a lawsuit. However, there are specific situ- ations where court approval is necessary. For exam- ple, if the lawsuit involves a minor or a person who is legally incapacitated, the court must approve the settlement to ensure that the terms are fair and in the best interests of the vulnerable party. In insolvency or winding-up proceedings, settlements involving the company, its creditors, or contributories must be sanctioned by the court pursuant to Section 585 of the Companies Act, 2015 and Section 423 of the Insolvency Act, 2015. 8. Settlement 8.1 Court Approval In public interest litigation or constitutional petitions, while parties may settle privately, courts often insist on reviewing the terms to ensure that they do not con- travene the Constitution or public policy under Article 159 (2)(d) of the Constitution of Kenya, 2010. 8.2 Settlement of Lawsuits and Confidentiality The settlement of a lawsuit can remain confidential, but the extent of confidentiality depends on the stage and manner in which the settlement is concluded. Where parties settle a dispute privately and out of court, the settlement agreement is a private contract
governed by the principles of contract law under the Law of Contract Act (Cap. 23). However, once the parties decide to record the set- tlement as a consent judgment or order in court under Order 25 of the Civil Procedure Rules, 2010, it becomes part of the court record, which is generally a matter of public record, although the substantive terms of the consent may still be kept confidential by limiting the details recorded on the court file. 8.3 Enforcement of Settlement Agreements Where a settlement is reached during litigation and recorded as a consent judgment or order, it has the same effect as a decree of the court and is immedi- ately enforceable through the normal execution proce- dures available under the Civil Procedure Act. Where the settlement is reached privately outside court proceedings, it is treated as a binding contract and enforced by filing a civil suit for breach of con- tract, seeking specific performance or damages. Where a dispute is resolved through arbitration under the Arbitration Act, 1995, the arbitral tribunal may issue a consent award which is binding and enforce- able as a decree of the High Court. Mediated settlements that have been filed and adopt- ed by the court acquire the status of court judgments and are enforceable as such under the Mediation (Pilot Project) Rules, 2015. 8.4 Setting Aside Settlement Agreements Settlement agreements can be set aside by the court if they are vitiated by invalidating factors such as: • misconduct, fraud, or a fundamental mistake by the mediator that was unknown to the applicant at the time and unfairly affected the outcome; • a party’s lack of legal capacity to enter the agree- ment; or • if the agreement is invalid or unenforceable under Kenyan or international law. For court-endorsed settlements additional grounds include material non-disclosure or procedural irregu- larities.
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