Litigation and Arbitration in Kenya — Dispute Resolution & ADR

The Judiciary of Kenya has actively integrated technology to enhance legal proceedings and streamline processes. Significant developments include:

• Since March 2020, courts have implemented virtual hearings. Magistrates’ Courts and the High Court use Microsoft Teams, whereas the Court of Appeal uses GoTo Meeting. Physical attendance is now rare and is used only when absolutely necessary.
• In July 2020, an electronic filing system was introduced to replace paper-based pleadings.
• The Judiciary has formalised performance management for judges and staff, established additional court stations, and is conducting ongoing recruitment of judicial officers.

Through its Blueprint for Social Transformation through Access to Justice, the Judiciary aspires to ensure trials are completed within three years and appeals are resolved within one year of filing.ng.

The Judiciary adheres to the principles of natural justice and operates solely under the authority of the Constitution and the law (Article 160). To uphold legal integrity and prevent corruption, the Judiciary has established:

• A complaints handling framework housed within the Office of the Judiciary Ombudsman.
• The adoption of e-filing, case tracking, and electronic record management systems to reduce manual intervention.
• Regular assessments to identify vulnerabilities.
• Enforcement of the Judicial Code of Conduct through formal training programs.

Yes. A litigant may seek early judgment through three main legal mechanisms:

• A Judgment in Default issued against a defendant who, despite being duly served with the summons and claim, fails to enter an appearance within the prescribed timeframe. The plaintiff must demonstrate proper service.
• Judgment on Admission if the defendant admits to the claim in a clear and unequivocal manner, enabling the plaintiff to apply for a judgment immediately without waiting for other issues to be determined.
• Summary Judgment for liquidated claims where the defendant’s pleadings raise no triable issues, indicating an absence of a defence, thereby permitting the plaintiff to apply for summary judgment.

Yes. Pursuant to Order 1 Rule 8 of the Civil Procedure Rules, parties sharing a common interest in proceedings against a common defendant may commence a Class Action in a representative capacity.

Participation is voluntary and on an opt-in basis. Parties intending to join the action must notify others with similar interests, typically via an advertisement in a newspaper with nationwide circulation, allowing them to apply to be joined to the proceedings.gs.

Currently, Third-Party Funding has not taken shape in Kenya. The historic prohibitions against Champerty (funding a lawsuit for a share of the proceeds) and Maintenance (supporting litigation without valid reason) remain in force under the Law Society of Kenya’s Code of Standards. However, it is legal, though uncommon, for parties to take out insurance policies to cover legal costs.

At the time of filing pleadings, parties must file a list of witnesses, witness statements, and a bundle of documents they intend to rely on.

A litigant who believes the opposing party possesses relevant documents may apply to the court for the discovery of those documents. The court may issue a Witness Summons to third parties to testify or produce documents. Failure to comply may result in a warrant of arrest.st.

Kenyan law protects several categories of privilege under the Evidence Act:

• Legal Professional Privilege (Section 134) – Advocates cannot disclose client communications without consent, unless the communication furthers an illegal purpose or involves a crime/fraud observed by the advocate.
• Privilege Against Self-Incrimination (Section 128) – A witness may refuse to answer questions that may expose them to criminal proceedings.
• Judicial Privilege (Section 129) – Judicial officers cannot be compelled to answer questions regarding their conduct in court.
• Spousal Privilege (Section 130) – Communications between spouses during marriage are protected.
• Official Communications (Section 132) – Public officers cannot be compelled to disclose communications if public interest would suffer.

Yes. Courts have wide powers to grant interim relief, such as prohibitory or mandatory injunctions. Applications for such relief can be made ex parte under a Certificate of Urgency if there is a risk of irreparable harm.

• To secure an interim injunction, the applicant must meet the principles of equity.
• Establish a prima facie case indicating a likelihood of success.
• Prove that they will endure irreparable injury without the injunction.
• Demonstrate that the balance of convenience favours granting the injunction.

A successful party (decree-holder) can apply for execution of a decree through:

• Attachment and sale of property via auction.
• Garnishee proceedings, such as attaching debts owed to the debtor, including bank accounts.
• Appointment of a receiver.
• Arrest and detention of the debtor in civil jail.
• Delivery of specific property.

The procedure depends on the originating country:

• Reciprocating Countries (Reciprocal Enforcement Act)
  Judgments from Australia, Malawi, Rwanda, Seychelles, Tanzania, Uganda, the UK, and Zambia can be registered directly with the High Court of Kenya. An application must be submitted within six years of the judgment, accompanied by a certificate from the originating court and a certified copy of the judgment.
• Non-Reciprocating Countries (Common Law)
  In other countries, the enforcement of a foreign judgment requires initiating a new civil suit before the High Court. The judgment creditor commences proceedings based on the foreign judgment (debt). The debtor may contest the judgment if it was procured through fraud, violates public policy, or was obtained without due process of natural justice.

Kenya acts as a pro-arbitration jurisdiction. The Arbitration Act restricts judicial intervention to specific instances, such as interim measures or the setting aside of awards. Kenya has twelve Bilateral Investment Treaties (BITs) in force, which generally prescribe disputes to be resolved through ICSID. Notable ICSID claims against Kenya include World Duty Free, WalAm Energy, and Cortec Mining, although the latter two were dismissed.

The NCIA is Kenya’s premier arbitration centre, established under the NCIA Act of 2013. It administers both domestic and international arbitral proceedings. Its rules closely resemble those of the London Court of International Arbitration (LCIA). The NCIA Act creates an Arbitral Court with exclusive jurisdiction over matters referred to it.

Kenya is a signatory to the New York Convention, and foreign awards are recognized and enforceable pursuant to Section 36(2) of the Arbitration Act. An application for enforcement must be filed within six years. The award must be final and binding, not set aside in the seat of arbitration, and not contrary to Kenyan public policy.

Yes. The Judiciary has rolled out Court-Annexed Mediation (CAM). Upon filing, cases undergo screening. Suitable cases are referred to a mediator. Mediation sessions are to be completed within 60 days. If an agreement is reached, the Mediation Agreement is adopted as a court order. If unresolved, the case proceeds to trial.

Kenya maintains various tribunals for regulatory appeals, among which the Competition Authority of Kenya (CAK) is a principal entity.

In the case of Majid Al Futtaim Hypermarkets Limited (Carrefour) v CAK, the High Court upheld CAK’s determination that Carrefour engaged in abuse of buyer power against suppliers, including practices such as unfair rebates and shifting commercial risk. However, the Court set aside CAK’s order to amend all supplier contracts, citing the rights of suppliers not involved in the litigation to a fair hearing.

Currently, CAK is considering amendments to replace the term “abuse of buyer power” with “abuse of superior bargaining position” to broaden the scope beyond retailer-supplier dynamics.

The general principle in law is that “costs follow the event”—meaning the prevailing party recovers legal costs from the unsuccessful party. Nonetheless, courts may decide that parties should bear their own costs in public interest litigation.

A defendant may request that the plaintiff provide security for costs if there is a risk that the plaintiff might be unable to pay legal expenses if they lose. Such an application is at the court’s discretion and is not solely determined by the plaintiff’s status as a foreign entity. The court assesses whether the defendant could face difficulties in recovering costs and whether the application is made in a timely manner (Cancer Investments Ltd v Sayani Investment Ltd).

Yes. The Limitation of Actions Act prescribes strict deadlines for filing claims. If you submit a claim after these periods, it will be considered “time-barred” and likely dismissed.

• Contract Claims – within 6 years of the breach.
• Tort (Negligence/Damages) – within 3 years of the occurrence of the damage.
• Land Disputes – within 12 years, with adverse possession claims arising after 12 years of continuous occupation.
• Claims against the Government – within 3 years, typically requiring a 30-day notice before proceedings.

For commercial disputes under KES 1 million, the Small Claims Court offers a fast-track solution. By law, cases must be concluded within 60 days. Lawyers are allowed, but the procedure is simplified to enable self-representation. Limited rights of appeal (on matters of law only) to the High Court.

Kenya has specialized courts with equal status to the High Court. The Employment and Labour Relations Court (ELRC) has exclusive jurisdiction over all employment-related disputes, trade union issues, and workplace discrimination cases.

The Environment and Land Court (ELC) has exclusive jurisdiction over land ownership, title disputes, and environmental cases.

The Kenyan judicial system is structured hierarchically. The High Court handles appeals from the Magistrates’ Courts. The Court of Appeal hears appeals from the High Court, ELRC, and ELC. The Supreme Court is the apex court in Kenya’s judicial system. It only hears appeals involving the interpretation of the Constitution or matters certified as being of “general public importance.