Article 159(2)(c) of the Kenyan Constitution promotes different dispute resolution mechanisms, among them arbitration. Arbitration has emerged as a preferred method for resolving disputes outside traditional court proceedings, offering parties flexibility, confidentiality, and specialized expertise in resolving their disputes.
However, obtaining an arbitration award is only the first step; ensuring its enforcement is crucial to fully realize the benefits of arbitration. This article provides a detailed guide on enforcing an arbitration award in Kenya, highlighting the legal framework, procedures, and key considerations for successful enforcement.
Understanding Arbitration in Kenya
Arbitration in Kenya is primarily governed by the Arbitration Act (Cap 49), which is based on the UNCITRAL Model Law. The Act provides a clear framework for the conduct of arbitration proceedings, as well as the recognition and enforcement of both domestic and international arbitration awards.
Steps to Enforce an Arbitration Award
Obtain the Arbitration Award: The first requirement for enforcement is having a valid arbitration award. This award must be duly signed by the arbitrators and meet the statutory requirements under Kenyan law, including stating reasons for the decision unless otherwise agreed by the parties.
Review and Prepare Documentation: Ensure you have the original or a certified copy of the arbitration award, along with the original arbitration agreement. Additionally, gather evidence that the arbitration proceedings have concluded, such as the arbitral tribunal’s final decision.
File an Application in the High Court: To initiate enforcement proceedings, file an application in the Commercial Division of the High Court of Kenya. The application should include:
- The original or certified copy of the arbitration agreement.
- The original or certified copy of the arbitration award.
- Evidence proving that the arbitration has concluded.
Application Procedure:
- Draft an application seeking recognition and enforcement of the arbitration award.
- Submit the application to the High Court along with the required documents.
- Pay the necessary court fees.
Court Hearing: After filing the application, the court will schedule a hearing. During the hearing, you may need to argue why the arbitration award should be recognized and enforced. The court will review the application and the supporting documents to ensure compliance with the legal requirements.
Grounds for Challenge: A party to an arbitration has recourse to the High Court against the award by way of an application for setting aside the award on any of the following eight grounds set out in Section 35(2) of the Arbitration Act, namely: -
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 or, failing any agreement on that law, the laws of Kenya;
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 case;
The arbitral award deals with a dispute not contemplated by, or not falling within the terms of the reference to arbitration, or contains decisions on matters beyond the scope 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 failing such agreement, was not in accordance with the Arbitration Act;
The making of the award was induced or affected by fraud, bribery, undue influence or corruption;
The subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or
The award is in conflict with the public policy of Kenya.
Enforcement of Foreign Arbitral Awards
The enforcement of foreign arbitral awards in Kenya is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, to which Kenya is a signatory. To enforce a foreign arbitral award, the party seeking enforcement must file an application with the High Court of Kenya. This application must include:
A certified copy of the arbitral award.
A certified copy of the arbitration agreement or clause.
An affidavit detailing the facts of the case and the award’s enforceability.
Key Considerations for Successful Enforcement
Compliance with Legal Requirements: Ensure that all documentation is complete and complies with the statutory requirements under the Arbitration Act. This includes having certified copies of the arbitration award and agreement.
Timely Filing: File the application for enforcement promptly to avoid any delays that could affect the enforceability of the award.
Legal Representation: Engage experienced legal counsel to navigate the complexities of the enforcement process and to represent your interests effectively in court.
Challenges in Enforcing Arbitration Awards
While the legal framework for enforcing arbitration awards in Kenya is well-established, there are potential challenges that parties may face:
Jurisdictional Issues: Disputes over the jurisdiction of the arbitral tribunal or the High Court can arise, particularly in cases involving foreign arbitral awards.
Grounds for Setting Aside: The opposing party may seek to set aside the arbitration award on various grounds, such as incapacity or invalidity of the arbitration agreement.
Delays in Court Proceedings: Despite the efficiency of arbitration, delays in court proceedings for enforcement can occur, impacting the timely realization of the award.
FAQs About Enforcing Arbitration Awards in Kenya
1. What is an arbitration award?
An arbitration award is the final decision made by an arbitrator, resolving a dispute between parties involved in arbitration.
2. How do I enforce an arbitration award in Kenya?
You must file an application with the High Court of Kenya, providing necessary documents, serving notice to the other party, and attending a court hearing.
3. What are common grounds for refusing enforcement?
The court may refuse enforcement if the award violates public policy or if there were procedural irregularities during arbitration.
Conclusion
Enforcing an arbitration award in Kenya involves a structured legal process designed to uphold the finality and enforceability of arbitral decisions. By understanding the legal framework, preparing the necessary documentation, and engaging experienced legal counsel, parties can navigate the enforcement process effectively.
As arbitration continues to grow as a preferred method of dispute resolution, ensuring the enforceability of arbitration awards remains a critical aspect of the arbitration process.
IIf you require assistance in enforcing an arbitration award or need legal representation in arbitration matters, our law firm is here to help. Contact us today for expert guidance tailored to your specific needs.
To learn more, please refer to the the Arbitration Act.
