Litigation & Arbitration in Kenya: FAQ

At a glance

Frequently asked questions

How is the court system structured for commercial disputes?

Kenya has a tiered system: the Supreme Court, the Court of Appeal, and the High Court, alongside two specialised courts of equal status — the Employment and Labour Relations Court and the Environment and Land Court. Below them sit the Magistrates’ Courts and statutory tribunals (such as the Tax Appeals Tribunal). High-value commercial matters are handled by the Commercial and Admiralty Division of the High Court in Nairobi and Mombasa.

Which court hears my claim depends on value — how does that work?

Jurisdiction is set by both subject matter and monetary value. Magistrates’ Courts hear claims up to prescribed monetary limits; larger commercial claims go to the High Court’s Commercial Division. Land disputes go to the Environment and Land Court and employment disputes to the ELRC, regardless of value, because those courts have specialised jurisdiction.

Should I litigate or arbitrate?

It turns on the contract and the dispute. Arbitration is private, lets the parties choose the arbitrator and the procedure, and is often faster and more final for complex commercial matters — but it needs an arbitration agreement. Litigation is the default where there is none, and remains necessary for some remedies and for bringing in third parties. Many commercial contracts now include an arbitration clause precisely to stay out of a congested court list and to keep the dispute confidential.

What law governs arbitration in Kenya?

The Arbitration Act, No. 4 of 1995 (amended in 2009), which is based on the UNCITRAL Model Law. It governs the arbitration agreement, the tribunal’s powers, the conduct of the reference, and the recognition and enforcement of awards. Court intervention is deliberately limited.

What is the NCIA, and do I have to use it?

The Nairobi Centre for International Arbitration, established under the NCIA Act 2013, is a regional arbitral institution that provides rules and administers arbitrations. You are not obliged to use it — parties can agree ad hoc arbitration or another institution — but its rules and Nairobi seat are a common choice for regional disputes.

Is mediation compulsory?

Filed cases are screened for suitability and, where appropriate, referred to court-annexed mediation, which runs to a fixed timetable before the matter returns to the litigation track. Article 159 requires courts to promote mediation, and many commercial contracts now provide for negotiation or mediation as a first step before arbitration or litigation.

How long do I have to bring a claim?

The Limitation of Actions Act sets the periods — broadly six years for breach of contract, three years for tort, and twelve years for recovery of land — running from when the cause of action arose. Miss the period and the claim is time-barred, so a dispute should be assessed early.

Can I get urgent or interim relief?

Yes. The courts can grant injunctions, preservation orders and freezing orders, and an arbitral tribunal can grant interim measures; in urgent cases a party can seek interim relief from the court even where the substantive dispute will be arbitrated. Securing the position early is often the first and most important step.

How are court judgments enforced?

Through the execution mechanisms in the Civil Procedure Act and Rules — attachment and sale of movable or immovable property, garnishee orders against bank accounts and debtors, appointment of a receiver, or committal in limited cases.

How are arbitral awards enforced?

A domestic award is recognised and enforced by the High Court under the Arbitration Act, on application. Foreign awards are enforced under the Act and the New York Convention, to which Kenya is a party, and can be refused only on the limited Convention grounds — such as an invalid arbitration agreement, denial of due process, or conflict with public policy.

Can a foreign court judgment be enforced in Kenya?

Yes — by registration under the Foreign Judgments (Reciprocal Enforcement) Act for the reciprocating countries, or by a fresh common-law suit on the judgment for all others.

Can I appeal, and how far?

Court decisions can generally be appealed up the hierarchy — from the High Court to the Court of Appeal and, on matters of general public importance or constitutional interpretation, to the Supreme Court. Arbitral awards, by contrast, are deliberately hard to challenge: the grounds to set aside an award under the Arbitration Act are narrow, which is part of arbitration’s appeal.

Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute a lawyer-client relationship. Nothing in this article is intended to guarantee, warranty, or predict the outcome of a particular case and should not be construed as such a guarantee, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations.