KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
13.3 Circumstances to Challenge an Arbitral Award A party may only challenge an arbitral award on the following specific grounds under Section 35 of the Arbitration Act: • that a party to the arbitration agreement was under some incapacity; • the arbitration agreement is not valid under the law to which the parties have subjected it; • the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his/her case; • the arbitral award deals with a dispute not con- templated by or not falling within the terms of the reference to arbitration; • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, or not in accordance with the Arbitration Act; or • the making of the award was induced or affected by fraud, bribery, undue influence or corruption. An application to set aside an arbitral award must be made within three months from the date the party received the award or, if a request for correction or interpretation was made, from the date of that deter- mination. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Enforcement of arbitral awards is governed primarily by Sections 36 and 37 of the Arbitration Act, 1995, and, in the case of foreign awards, by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958. For domestic arbitral awards, the party seeking enforcement files a formal application accompanied by the original or certified copy of the award and the arbitration agreement. Once recognised, the award is entered as a judgment of the court and can be exe- cuted like any other court decree. For foreign arbitral awards, the party must file the award and arbitration agreement with the High Court, together with a certified English translation if neces-
sary. The court will recognise and enforce the award as a decree, provided it was made in a country that is a party to the New York Convention and arises from a commercial relationship. 14. Outlook 14.1 Proposals for Dispute Resolution Reform The government, through the Office of the Attorney General and Nairobi Centre for International Arbitra- tion, issued three draft bills in mid-2025 under the ADR Policy for public comment. • The Dispute Resolution Bill, intended to provide a statutory basis for mediation, conciliation and other ADR methods, and to establish a National Dispute Resolution Council. • The Arbitration (Amendment) Bill, aimed at aligning Kenya’s Arbitration Act with global best practices, including provisions for emergency arbitrators, third-party funding and clarifications on the roles of courts. • The Construction Adjudication Bill, to introduce faster, sector-specific adjudication mechanisms for construction disputes. The call for stakeholder feedback on these was open until 30 June 2025. However, the bills are not yet law, so their coming into force will depend on parliamentary passage, presiden- tial assent and implementation. Given the process as of mid-2025, if all goes smoothly, one might expect some of the reforms (or portions thereof) to begin tak- ing effect sometime in 2026, though exact commence- ment dates have not yet been publicly announced. 14.2 Growth Areas The most dynamic area of growth within commercial disputes in Kenya lies at the intersection of technol- ogy, data protection and data governance-related liti- gation. As the country continues to position itself as a regional technology hub, a surge of disputes touch- ing on data misuse and breaches, cyber fraud and technology contract failures has been ushered into the sphere of commercial litigation.
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