A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Republic of Kenya.

2. Date of entry into force of the New York Convention

10 Feb. 1989.

3. Has any reservation been made under Art. I(3) of the New York Convention regarding

(a) reciprocity?

Yes.

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

Yes. Awards rendered in Kenya will not be considered as domestic awards in the following situation:

(i) at the time of conclusion of the arbitration agreement, individual parties have their place of business or habitual residence outside Kenya;

(ii) none of the individual parties are Kenyan citizens;

(iii) none of the legal parties are incorporated in Kenya or have their central management or control in Kenya; or

(iv) a substantial part of the obligations in the contract were not to be performed in Kenya;

(v) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one state, other than Kenya.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) The Constitution of Kenya, 2010;

(ii) The Arbitration Act, 1995 and Arbitration Rules, 1997;

(iii) The Limitation of Actions Act, Cap 22, Laws of Kenya;

(iv) Foreign Judgments (Reciprocal Enforcement) Act;

(v) The Civil Procedure Act and the Civil Procedure Rules, 2010.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The limitation period is six years and starts running from the date when the award becomes binding on the party against whom it is intended to be enforced (i.e. all challenges and/or appeals have been concluded).

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The High Court of Kenya.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There are no pre-conditions for assumption of jurisdiction for enforcement.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision is inter partes. However, if the person(s) against whom enforcement is sought fails to appear at the hearing of the application for recognition and enforcement of the award after proof by the applicant that they have been notified of such hearing, the decision can be made in their absence.

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

The Supreme Court in the case of Nyutu Agrovet Limited v Airtel Networks Limited & another [2019] eKLR held that an appeal against a determination on an application to set aside an award may be filed at the Court of Appeal only when the said decision went beyond the grounds for setting aside the award as prescribed under section 35 of the Arbitration Act, thereby making a manifestly wrong decision which occasioned a grave injustice to either of the parties.

Following this same reasoning, we consider that a decision to grant or deny recognition and enforcement of an award may be subject to an appeal if the decision stepped outside the grounds prescribed under section 37 of the Arbitration Act and the said decision occasioned severe injustice to the parties.

(b) How many levels of appeal or recourse are available against this decision?

Normally, there is one level of appeal to the Court of Appeal for commercial disputes. However, if a party’s appeal relates to a constitutional matter, they may file a second appeal to the Supreme Court if they obtain leave to do so.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

After orders being made ex parte for recognition of the award by the High Court.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

  1. The award; and
  2. The arbitration agreement.

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The entire document must be provided.

(c) Are originals or duly certified copies required?

Either will be accepted.

(d) How many originals or duly certified copies are required?

Equivalent to the number of respondents plus two additional copies.

(e) Does the authority or court keep the originals that are filed?

Yes. Upon written application to the Registrar after the conclusion of the proceedings, these will be returned to the advocate for the applicant.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes

(b) If yes, into what language?

English

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

A certificate to the effect that the translation is an accurate reflection of the contents of the original document must be signed in the presence of a notary public by the person who prepared the translation (if the certificate is signed in a commonwealth country).

Where the certificate is not being signed in a commonwealth country, then the same will have to be legalised at the Kenyan embassy in that country.

Note: Kenya is not a signatory to the Apostille Convention (Convention of 5 Oct. 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents).

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

A full translation is required.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

None.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

Not necessarily. However, the party seeking recognition and enforcement can request for security and the Court has power to order appropriate security.

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Documents filed in legal proceedings for recognition and enforcement form part of the public record. An application for the case file to be kept in the court registry’s strong room can be made to the court, either formally or informally.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Hearings are not confidential. A public hearing of disputes in court is a key feature of the constitutional requirement for a fair hearing.

Steps can however be taken to exclude members of the public (e.g. an application can be made for the hearing to proceed in camera). The standard for exclusion of the public is quite high and exclusion will be granted only if it is necessary to protect witnesses or vulnerable persons, morality, public order or national security.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Judgments on recognition and enforcement are published. In special circumstances, an application can be made for the redaction of certain information in the official report. This would be subject to the court’s discretion.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

At any time before the lapse of six years after the interim or partial award.

(Source: Limitation of Actions Act, Section 4(1).)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

At any time before the lapse of six years after the award.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

At any time before the lapse of six years after the award.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

Never.

(Source: 1995 Arbitration Act, Section 37(1)(a)(vi).)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteurs: Aisha Abdallah, Faith Macharia and Georgina Amayo