Litigation & Arbitration in Kenya: FAQ

At a glance

Frequently asked questions

1. The Judicial System & Efficiency

How efficient is the litigation process in Kenya?

The Judiciary of Kenya has aggressively embraced technology to increase efficiency in litigation and reduce costs. Key advancements include:

• Virtual Proceedings: Since March 2020, courts have adopted virtual proceedings. Magistrates’ Courts and the High Court use Microsoft Teams, while the Court of Appeal uses GoTo Meeting. In-person attendance is now the exception, reserved for cases where it cannot be dispensed with.
• E-Filing: In July 2020, an electronic filing system was rolled out to replace paper pleadings.
• Performance Management: The Judiciary has institutionalized performance management for judges and staff, established additional court stations, and continuously recruits judicial officers.

Target Timelines: Through its Blueprint for Social Transformation through Access to Justice, the Judiciary aims to ensure that trials do not take more than three years and appeals are resolved within one year of filing.

How does the Judiciary ensure the integrity of the process?

The Judiciary observes the rules of natural justice and is subject only to the Constitution and the law (Article 160). To ensure integrity and combat corruption, the Judiciary has implemented:

• 1. Ombudsman: A complaints handling mechanism domiciled in the Office of the Judiciary Ombudsman.
• 2. Automation: Implementation of e-filing, case tracking systems, and electronic record keeping to minimize human intervention.
• 3. Audits: Periodic evaluations to identify areas of vulnerability.
• 4. Training: Implementation of the Judicial Code of Conduct through structured training.

2. Commencing Claims & Early Judgment

Can I obtain a judgment without going through a full trial?

Yes. A litigant can apply for early judgment through three primary mechanisms:

• 1. Judgment in Default: Entered against a defendant who, despite being served with summons and the claim, fails to enter an appearance within the stipulated timelines. The plaintiff must prove proper service.
• 2. Judgment on Admission: If a defendant admits to the claim (where the admission is plain, obvious, and unequivocal), the plaintiff can apply for judgment immediately without waiting for other issues to be determined.
• 3. Summary Judgment: For liquidated claims where the defendant’s pleadings raise no triable issues (i.e., there is plainly no defense), the plaintiff can apply for summary judgment.

Are Class Actions (Collective Actions) permitted in Kenya?

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

• Opt-In Basis: Participation is on an opt-in basis. Parties commencing 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.

Is Third-Party Litigation Funding allowed?

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.

• Note: It is legal, though uncommon, for parties to take out insurance policies to cover legal costs.

3. Evidence & Privilege

What is the discovery process in Kenya?

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

• Discovery: A litigant believing the opposing party possesses relevant documents can apply to the court for discovery of documents.
• Witness Summons: The court may issue summons to third parties to testify or produce documents. Failure to comply may result in a warrant of arrest.

What types of Privilege are recognized in Kenya?

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

• 1. 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.
• 2. Privilege Against Self-Incrimination (Section 128): A witness may refuse to answer questions that may expose them to criminal proceedings.
• 3. Judicial Privilege (Section 129): Judicial officers cannot be compelled to answer questions regarding their conduct in court.
• 4. Spousal Privilege (Section 130): Communications between spouses during marriage are protected.
• 5. Official Communications (Section 132): Public officers cannot be compelled to disclose communications if public interest would suffer.

4. Interim Relief (Injunctions)

Can I get an Injunction or Interim Order?

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

To obtain an interim injunction, an applicant must satisfy the principles of equity:

• 1. Establish a prima facie case with a probability of success.
• 2. Demonstrate that they will suffer irreparable injury if the injunction is not granted.
• 3. Show that the balance of convenience favors granting the injunction.

5. Enforcement of Judgments

How do I enforce a Domestic Judgment in Kenya?

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

• Attachment and sale of property (by auction).
• Garnishee proceedings (attaching debts owed to the debtor, e.g., bank accounts).
• Appointment of a receiver.
• Arrest and detention of the debtor (in civil jail).
• Delivery of specific property.

Can I enforce a Foreign Judgment in Kenya?

The procedure depends on the originating country:

A. Reciprocating Countries (Reciprocal Enforcement Act)

Judgments from Australia, Malawi, Rwanda, Seychelles, Tanzania, Uganda, UK, and Zambia can be registered directly at the High Court of Kenya.

• Time Limit: Application must be made within six years of the judgment.
• Requirements: A certificate from the original court and a certified copy of the judgment.

B. Non-Reciprocating Countries (Common Law)

For other countries, the foreign judgment is enforced by filing a fresh Plaint (civil suit) at the High Court.

• The judgment creditor files a suit based on the foreign judgment (debt).
• The debtor can challenge it if the judgment was obtained by fraud, contrary to public policy, or without natural justice.

6. Arbitration & ADR

How is International Arbitration handled in Kenya?

Kenya acts as a pro-arbitration jurisdiction. The Arbitration Act limits judicial intervention to specific instances (e.g., interim measures, setting aside awards).

• Bilateral Investment Treaties (BITs): Kenya has 12 BITs in force, typically referring disputes to ICSID.
• Case Law: Notable ICSID claims against Kenya include World Duty Free, WalAm Energy, and Cortec Mining (the latter two were dismissed).

What is the Nairobi Centre for International Arbitration (NCIA)?

The NCIA is Kenya’s premier arbitration centre, established under the NCIA Act, 2013.

• It administers domestic and international arbitrations.
• Its rules largely mirror the London Court of International Arbitration (LCIA) rules.
• The NCIA Act establishes an Arbitral Court with exclusive jurisdiction over matters referred to it.

How are Foreign Arbitral Awards enforced?

Kenya is a signatory to the New York Convention. A foreign award is recognized and enforced under Section 36(2) of the Arbitration Act.

• Time Limit: Application must be made within six years.
• Conditions: The award must be binding, not set aside in the seat of arbitration, and not contrary to Kenyan public policy.

Is Mediation available?

Yes. The Judiciary has rolled out Court-Annexed Mediation (CAM).

• Screening: Upon filing, cases are screened. If suitable, they are referred to a mediator.
• Timeline: Mediation proceedings are to be concluded within 60 days.
• Outcome: If settled, the Mediation Agreement is adopted as an order of the Court. If not, the matter proceeds to trial.

7. Regulatory Disputes

How are Competition and Regulatory disputes handled?

Kenya has various tribunals for regulatory appeals. A key body is the Competition Authority of Kenya (CAK).

• Recent Case Study: In Majid Al Futtaim Hypermarkets Limited (Carrefour) v CAK, the High Court upheld CAK’s finding that Carrefour abused its buyer power against suppliers (e.g., unfair rebates, shifting commercial risk). However, the Court set aside CAK’s order to amend all supplier contracts, citing the right to a fair hearing for suppliers who were not part of the suit.
• Legislative Changes: CAK is currently reviewing amendments to replace “abuse of buyer power” with “abuse of superior bargaining position” to widen the scope beyond retailer-supplier relationships.

8. Costs & Security for Costs

Who pays the costs of litigation?

The general rule is that “costs follow the event”—the winner recovers costs from the loser. However, courts may order parties to bear their own costs in public interest litigation.

Can I ask for Security for Costs?

A defendant can apply for the plaintiff to provide security for costs if there is a risk they won’t be able to pay legal costs if they lose.

• Principles: It is discretionary and not based solely on the plaintiff being a foreign entity. The court considers if the defendant will be impeded in recovering costs and if the application is made promptly (Cancer Investments Ltd v Sayani Investment Ltd).

9. Time Limits for Bringing Claims

Is there a deadline for filing a lawsuit?

Yes. The Limitation of Actions Act prescribes strict timelines. If you file after these dates, your claim is “time-barred” and will likely be dismissed.

• Contract Claims: 6 Years from the date of the breach.
• Tort (Negligence/Damages): 3 Years from the date the damage occurred.
• Land Disputes: 12 Years (Adverse Possession claims arise after 12 years of continuous occupation).
• Claims against the Government: Usually must be filed within 3 Years, often with a mandatory 30-day notice prior to suing.

10. Specialized Courts & Small Claims

What is the Small Claims Court?

For commercial disputes under KES 1 Million, the Small Claims Court offers a fast-track solution.

• Speed: By law, cases must be concluded within 60 days.
• Representation: Lawyers are permitted, but the process is simplified to allow self-representation.
• Appeal: Limited rights of appeal (on matters of law only) to the High Court.

Which court hears Employment or Land disputes?

Kenya has specialized courts with equal status to the High Court:

• Employment & Labour Relations Court (ELRC): Exclusive jurisdiction over all employer-employee disputes, trade unions, and discrimination at work.
• Environment and Land Court (ELC): Exclusive jurisdiction over land ownership, title disputes, and environmental matters.

11. The Appeals Process

Can I appeal a court decision?

Yes, the Kenyan judicial system is hierarchical.

• High Court: Hears appeals from the Magistrates’ Courts.
• Court of Appeal: Hears appeals from the High Court, ELRC, and ELC.
• Supreme Court: The apex court. It only hears appeals involving the interpretation of the Constitution or matters certified as being of “general public importance.”