KENYA Trends and Developments Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
In one of the earliest arbitration cases under the Act, the Court of Appeal’s decision in Christ for All Nations v Apollo Insurance Co. Ltd (2002) 2 EA 366 was a watershed. Although Section 10 restricted court intervention, the Court held that it retained jurisdic- tion to set aside an award that was inconsistent with Kenya’s public policy. Public policy was cast in wide terms, encompassing not only illegality or fraud but also awards that offended notions of justice or moral- ity. This expansive interpretation effectively opened the door to broader merits review under the guise of “public policy”. Seven years later, the Court of Appeal took a firm stand on finality. In Anne Mumbi Hinga v Victoria Njoki Gathara (2009) eKLR , it held that the Arbitration Act is a self-contained code, and Section 10 expressly bars court intervention except as provided in the Act. By rejecting attempts to invoke constitutional arguments to expand review powers, the Court reinforced arbitral autonomy and reassured parties of minimal judicial interference. In Kenya Oil Co. Ltd & Another v Kenya Pipeline Co. Ltd (2014) eKLR , the Court of Appeal reaffirmed that Section 35 governs setting aside applications but adopted a wide interpretation of public policy. This allowed the Court to interrogate the substance of the tribunal’s reasoning, thereby blurring the line between a review and a disguised appeal. The decision marked the beginning of courts edging closer to a merits- based approach under the guise of public policy. Nonetheless, in Nyutu Agrovet Ltd v Airtel Networks Kenya Ltd (2019) eKLR , the Supreme Court created a significant exception to Section 35. While recognising that the Act intended finality, the Court held that in exceptional circumstances an appeal to the Court of Appeal may lie from a High Court decision on a Sec- tion 35 application, particularly where the High Court’s decision itself would occasion a miscarriage of jus- tice. This reasoning, though couched as a safeguard, reintroduced uncertainty by subjecting arbitral awards to multi-tier judicial scrutiny. This was a watershed moment, introducing a constitutional overlay onto arbitration.
In Synergy Industrial Credit Ltd v Cape Holdings Ltd (2019) eKLR , the Court of Appeal went even further, closely interrogating the merits of an arbitral award. The Court scrutinised not merely jurisdiction or pro- cedure, but also the tribunal’s evaluation of evidence, ultimately setting aside the award on grounds of public policy and excess of mandate. The judgment underscored how easily courts can re-litigate disputes under the banner of supervisory jurisdiction, leaving parties to endure lengthy post-award litigation. The cumulative effect of these decisions has been to dilute the finality promised by Sections 10 and 32A. Awards that should provide closure are instead sub- jected to protracted judicial review, often consum- ing as much time and cost as ordinary litigation. For commercial parties, this undermines arbitration’s comparative advantage. The jurisprudence reveals an inherent tension: while the judiciary proclaims sup- port for arbitration, it retains a supervisory instinct that undercuts arbitral autonomy. This doctrinal ambiva- lence has created uncertainty, undermining Kenya’s attractiveness as an arbitral seat. Practical challenges to arbitration in Kenya Judicial intervention and appeals Sections 35, 36, 37 and 39 of the Act provide avenues for court involvement. Though designed as safety valves, they have become portals for tactical delay. The Supreme Court in the Nyutu case opened the door wider, giving the Court of Appeal a discretionary role in reviewing arbitral awards. Finality of an award has thus become qualified, leaving parties uncertain as to whether or not their awards will withstand judi- cial scrutiny. State entities and large corporates have increasingly used these avenues strategically, under- mining arbitration’s comparative advantage over court litigation. Cost structures Contrary to the promise of cost-effectiveness, arbi- tration in Kenya can be prohibitively expensive. Tri- bunal fees, institutional charges where arbitration is conducted under the Nairobi Centre for International Arbitration (NCIA) or similar institutions, and profes- sional fees often exceed those in High Court litigation. The lack of a statutory tariff for arbitrator fees leaves
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