Kenya Act or statute

Parliament of Kenya

Arbitration Act

This Act may be cited as the Arbitration Act. The provisions of the Act apply to domestic arbitration and international arbitration. Defines key arbitration terms and interprets certain references…

Jurisdiction: Kenya
Structure: 47 provisions
Citation: Cap. 49
Dates: As at 31 Dec 2022

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Dates: As at 31 Dec 2022

Source attribution: Source: Kenya Law

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Purpose and legislative effect

“This Act may be cited as the Arbitration Act.”

This Act may be cited as the Arbitration Act. The provisions of the Act apply to domestic arbitration and international arbitration. Defines key arbitration terms and interprets certain references: parties may authorize a third party to determine issues when the Act leaves them free to decide. Courts are prohibited from intervening in matters governed by this Act, except as provided in the Act. An arbitration agreement must be in writing; it may take the form of an arbitration clause in a contract or a separate agreement. Writing includes a signed document, an exchange of letters/telex/telegram/facsimile/electronic mail or other telecommunications providing a record, or an exchange of statements of claim and defence where existence of the agreement is alleged by one party and not denied by the other. A contract’s reference to a document with an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference incorporates the clause.

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PRELIMINARY - 1. Short title

This Act may be cited as the Arbitration Act.

Section 1

COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 13. Grounds for challenge

Persons approached about appointment and appointed arbitrators must disclose circumstances likely to raise justifiable doubts about impartiality or independence; a party may challenge an arbitrator only for reasons learned after appointment.

Section 13

CONDUCT OF ARBITRAL PROCEEDINGS - 21. Place ofarbitration

Parties may agree on the juridical seat and hearing locations; if they do not, the arbitral tribunal must decide the place of arbitration; the tribunal may meet at any location it considers appropriate unless the parties agree otherwise.

Section 21

ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 32A. Effect of award

Unless the parties agree otherwise, an arbitral award is final and binding on the parties; no recourse against the award is available except in the manner provided by this Act.

Section 32A

MISCELLANEOUS PROVISIONS - 41. Government to be bound

The Act binds the Government.

Section 41

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Showing 47 of 47 provisions

Provision 38Commencement 4Interpretation 2Short title

Part I

PRELIMINARY

§ 1PRELIMINARY - 1. Short titleShort title

This Act may be cited as the Arbitration Act.

Section 1. Short title Section This Act may be cited as the Arbitration Act.

Section 1Verify source

§ 2PRELIMINARY - 2. ApplicationProvision

The provisions of the Act apply to domestic arbitration and international arbitration.

Section 2. Application Section Except as otherwise provided in a particular case, the provisions of this Act shall apply to domestic arbitration and international arbitration .

Section 2Verify source

§ 3PRELIMINARY - 3. InterpretationInterpretation

Defines key arbitration terms and interprets certain references: parties may authorize a third party to determine issues when the Act leaves them free to decide.

Section 3. Interpretation Section 3(1) In this Act, unless the context otherwise requires— "arbitration" means any arbitration whether or not administered by a permanent arbitral institution; "arbitration agreement" means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not; "arbitral award" means any award of an arbitral tribunal and includes an interim arbitral award; "arbitral tribunal" means a sole arbitrator or a panel of arbitrators; "party" means a party to an arbitration agreement and includes a person claiming through or under a party. Section 3(2)(a) where the arbitration is between individuals, the parties are nationals of Kenya or are habitually resident in Kenya; Section 3(2)(b) where the arbitration is between bodies corporate, the parties are incorporated in Kenya or their central management and control are exercised in Kenya; Section 3(2)(c) the party who is an individual is a national of Kenya or is habitually resident in Kenya; and Section 3(2)(c)(i) the party who is an individual is a national of Kenya or is habitually resident in Kenya; and Section 3(2)(c)(ii) the party that is a body corporate is incorporated in Kenya or its central management and control are exercised in Kenya; or Section 3(2)(d) the place where a substantial part of the obligations of the commercial relationship is to be performed, or the place with which the subject- matter of the dispute is most closely connected, is Kenya. Section 3(3)(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states; Section 3(3)(b) the juridical seat of arbitration is determined by or pursuant to the arbitration agreement; or Section 3(3)(b)(i) the juridical seat of arbitration is determined by or pursuant to the arbitration agreement; or Section 3(3)(b)(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or Section 3(3)(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one state. Section 3(4)(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and Section 3(4)(b) if a party does not have a place of business, reference is to be made to his habitual residence. Section 3(5) Where a provision of this Act, except section 29 leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party including an institution to make that determination. Section 3(6) Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refer to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement. Section 3(7) Where a provision of this Act, other than sections 26 and 33 (2)(a), refers to a claim, it also applies to a counterclaim, and where it refers to a defence it also applies to a defence to such counterclaim. [Act No. 11 of 2009 , s. 2.]

Section 3Verify source

Part II

GENERAL PROVISIONS

§ 10GENERAL PROVISIONS - 10. Extent of court interventionProvision

Courts are prohibited from intervening in matters governed by this Act, except as provided in the Act.

Section 10. Extent of court intervention Section Except as provided in this Act, no court shall intervene in matters governed by this Act.

Section 10Verify source

§ 4GENERAL PROVISIONS - 4. Form of arbitration agreementProvision

An arbitration agreement must be in writing; it may take the form of an arbitration clause in a contract or a separate agreement. Writing includes a signed document, an exchange of letters/telex/telegram/facsimile/electronic mail or other telecommunications providing a record, or an exchange of statements of claim and defence where existence of the agreement is alleged by one party and not denied by the other. A contract’s reference to a document with an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference incorporates the clause.

Section 4. Form of arbitration agreement Section 4(1) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. Section 4(2) An arbitration agreement shall be in writing. Section 4(3)(a) a document signed by the parties; Section 4(3)(b) an exchange of letters, telex, telegram, facsimile, electronic mail or other means of telecommunications which provide a record of the agreement; or Section 4(3)(c) an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other party. Section 4(4) The reference in a contract to a document containing an arbitration clause shall constitute an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract. [Act No. 11 of 2009 , s. 3.]

Section 4Verify source

§ 5GENERAL PROVISIONS - 5. Waiver of right to objectProvision

If a party knows a provision or arbitration requirement wasn't complied with but continues the arbitration without promptly stating an objection (or within any prescribed time limit), that party is deemed to have waived the right to object.

Section 5. Waiver of right to object Section A party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is prescribed, within such period of time, is deemed to have waived the right to object. [Act No. 11 of 2009 , s. 4.]

Section 5Verify source

§ 6GENERAL PROVISIONS - 6. Stay of legal proceedingsProvision

After an application under subsection (1) has been made and the matter remains undetermined, proceedings before the court shall not be continued; if the court declines to stay proceedings, any arbitration agreement provision making an award a condition precedent to court proceedings is of no effect for those proceedings.

Section 6. Stay of legal proceedings Section 6(1)(a) that the arbitration agreement is null and void, inoperative or incapable of being performed; or Section 6(1)(b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to arbitration. Section 6(2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined. Section 6(3) If the court declines to stay legal proceedings, any provision of the arbitration agreement to the effect that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings. [Act No. 11 of 2009 , s. 5.]

Section 6Verify source

§ 7GENERAL PROVISIONS - 7. Interim measures by courtProvision

A party may ask the High Court for interim measures before or during arbitration and the High Court may grant them; if the arbitral tribunal has already ruled on a relevant matter, the High Court must treat that ruling or finding of fact as conclusive for the application.

Section 7. Interim measures by court Section 7(1) It is not incompatible with an arbitration agreement for a party to request from the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to grant that measure. Section 7(2) Where a party applies to the High Court for an injunction or other interim order and the arbitral tribunal has already ruled on any matter relevant to the application, the High Court shall treat the ruling or any finding of fact made in the course of the ruling as conclusive for the purposes of the application.

Section 7Verify source

§ 8GENERAL PROVISIONS - 8. Death of apartyProvision

An arbitration agreement remains enforceable by or against the personal representative of a deceased party.

Section 8. Death of aparty Section 8(1) An arbitration agreement is not discharged by the death of any party thereto, either as respects the deceased or any other party , but in such event is enforceable by or against the personal representative of the deceased. Section 8(2) The authority of an arbitrator is not revoked by the death of any party by whom he was appointed. Section 8(3) Nothing in this section affects the operation of any law by virtue of which any right of action is extinguished by the death of a person.

Section 8Verify source

§ 9GENERAL PROVISIONS - 9. Receipt of written communicationsProvision

Specifies when written communications are deemed received: transmissions to a facsimile number or electronic mailing address specified by the addressee as address for service; deliveries to the addressee personally or at business, residence or mailing address; sending to last known contact details or by any method that records the attempt, with receipt dated in that record; excludes service of documents for legal proceedings governed by rules of court.

Section 9. Receipt of written communications Section 9(1)(a) is deemed to have been received if it is transmitted to a facsimile number or electronic mailing address, as the case may be, specified by the addressee as his number or address for service; and Section 9(1)(a)(i) is deemed to have been received if it is transmitted to a facsimile number or electronic mailing address, as the case may be, specified by the addressee as his number or address for service; and Section 9(1)(a)(ii) is deemed to have been received on the day on which it is so transmitted; or Section 9(1)(b) is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; and Section 9(1)(b)(i) is deemed to have been received if it is delivered to the addressee personally or if it is delivered at his place of business, habitual residence or mailing address; and Section 9(1)(b)(ii) is deemed to have been received on the day on which it was so delivered. Section 9(2)(a) is deemed to have been received if it is sent to the addressee’s last known place of business, residential address or mailing address, or last known facsimile number or electronic mailing address, or by any other means that provides a record of the attempt to deliver or transmit the communication; and Section 9(2)(b) is deemed to have been received on the date specified in that record. Section 9(3) This section does not apply to the service of documents for the purpose of legal proceedings for which provision is made by rules of court. [Act No. 11 of 2009 , s. 6.]

Section 9Verify source

Part III

COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL

§ 11COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 11. Determination of number of arbitratorsProvision

Parties may decide how many arbitrators to use; if an agreement provides for two arbitrators, those two must appoint a third unless the agreement shows a contrary intention.

Section 11. Determination of number of arbitrators Section 11(1) The parties are free to determine the number of arbitrators. Section 11(2) Failing such determination, the number of arbitrators shall be one. Section 11(3) Where an arbitration agreement provides that the reference shall be to two arbitrators, then, unless a contrary intention is expressed in the agreement, the agreement is deemed to include a provision that the two arbitrators shall appoint a third arbitrator immediately after they are themselves appointed. [Act No. 11 of 2009 , s. 7.]

Section 11Verify source

§ 12COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 12. Appointment of arbitratorsProvision

Rules for appointing arbitrators: parties appoint arbitrators according to whether there are one, two, or three arbitrators; nationality does not preclude acting as arbitrator unless parties agree otherwise; the High Court handles disputes about appointments and can set aside or make appointments.

Section 12. Appointment of arbitrators Section 12(1) No person shall be precluded by reason of that person’s nationality from acting as an arbitrator, unless otherwise agreed by the parties. Section 12(2)(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator and the two arbitrators so appointed shall appoint the arbitrator; Section 12(2)(b) in an arbitration with two arbitrators, each party shall appoint one arbitrator; and Section 12(2)(c) in an arbitration with one arbitrator, the parties shall agree on the arbitrator to be appointed. Section 12(3)(a) has indicated that he is unwilling to do so; Section 12(3)(b) fails to do so within the time allowed under the arbitration agreement ; or Section 12(3)(c) fails to do so within fourteen days (where the arbitration agreement does not limit the time within which an arbitrator must be appointed by a party ), the other party , having duly appointed an arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator. Section 12(4)(a) make the required appointment; and Section 12(4)(b) notify the other party that he has done so, the other party may appoint his arbitrator as sole arbitrator, and the award of that arbitrator shall be binding on both parties as if he had been so appointed by agreement. Section 12(5) Where a sole arbitrator has been appointed under subsection (4), the party in default may, upon notice to the other party , apply to the High Court within fourteen days to have the appointment set aside. Section 12(6) The High Court may grant an application under subsection (5) only if it is satisfied that there was good cause for the failure or refusal of the party in default to appoint his arbitrator in due time. Section 12(7) The High Court, if it grants an application under subsection (5), may, by consent of the parties or on the application of either party , appoint a sole arbitrator. Section 12(8) A decision of the High Court in respect of a matter under this section shall be final and not be subject to appeal. Section 12(9) The High Court in appointing an arbitrator shall have due regard to any qualifications required of an arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account the advisability of appointing an arbitrator of a nationality other than those of the parties. [Act No. 11 of 2009 , s. 8.]

Section 12Verify source

§ 13COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 13. Grounds for challengeProvision

Section 13. Grounds for challenge Section 13(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. Section 13(2) From the time of his appointment and throughout the arbitral proceedings, an arbitrator shall without delay disclose any such circumstances to the parties unless the parties have already been informed of them by him. Section 13(3) An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality and independence, or if he does not possess qualifications agreed to by the parties or if he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so. Section 13(4) A party may challenge an arbitrator appointed by him, or in whose appointment that party has participated, only for reasons of which he becomes aware after the appointment. [Act No. 11 of 2009 , s. 9.]

Section 13Verify source

§ 14COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 14. Challenge procedureCommencement

Parties may agree a procedure to challenge an arbitrator; if no agreement, a party intending to challenge must within fifteen days send a written statement of reasons to the arbitral tribunal; if that challenge fails the challenging party may apply to the High Court within thirty days; the challenged arbitrator may appear before the High Court; the High Court may confirm or uphold the challenge and may remove the arbitrator and make orders about fees; while a High Court application is pending parties may continue arbitral proceedings but an award does not take effect until the application is decided and will be void if the application succeeds.

Section 14. Challenge procedure Section 14(1) Subject to subsection (3), the parties are free to agree on a procedure for challenging an arbitrator. Section 14(2) Failing an agreement under subsection (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the composition of the arbitral tribunal or after becoming aware of any circumstances referred to in section 13 (3), send a written statement of the reasons for the challenge to the arbitral tribunal, and unless the arbitrator who is being challenged withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. Section 14(3) If a challenge under agreed procedure or under subsection (2) is unsuccessful, the challenging party may, within thirty days after being notified of the decision to reject the challenge, apply to the High Court to determine the matter. Section 14(4) On an application under subsection (3), the arbitrator who was challenged shall be entitled to appear and be heard before the High Court determines the application. Section 14(5) The High Court may confirm the rejection of the challenge or may uphold the challenge and remove the arbitrator. Section 14(6) The decision of the High Court on such an application shall be final and shall not be subject to appeal. Section 14(7) Where an arbitrator is removed by the High Court under this section, the court may make such order as it thinks fit with respect to his entitlement (if any) to fees or expenses or the repayment of any fees or expenses already paid. Section 14(8) While an application under subsection (3) is pending before the High Court, the parties may commence, continue and conclude arbitral proceedings, but no award in such proceedings shall take effect until the application is decided, and such an award shall be void if the application is successful. [Act No. 11 of 2009 , s. 10.]

Section 14Verify source

§ 15COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 15. Failure or impossibility to actProvision

A party may apply to the High Court to decide on termination of an arbitrator's mandate if there is a dispute about grounds in subsection (1)(a).

Section 15. Failure or impossibility to act Section 15(1)(a) he is unable to perform the functions of his office or for any other reason fails to conduct the proceedings properly and with reasonable dispatch; or Section 15(1)(b) he withdraws from his office; or Section 15(1)(c) the parties agree in writing to the termination of the mandate. Section 15(2) If there is any dispute concerning any of the grounds referred to in subsection (1)(a), a party may apply to the High Court to decide on the termination of the mandate. Section 15(3) A decision of the High Court under subsection (2) shall be final and shall not be subject to appeal. Section 15(4) Where under this section or section 14 (2), an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, that shall not imply acceptance of the validity of any ground referred to in this section or section 16 (3). [Act No. 11 of 2009 , s. 11.]

Section 15Verify source

§ 16COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 16. Termination of mandate and substitution of arbitratorSubstitution

An arbitrator's authority is personal and ends on his death; substitute arbitrators must be appointed according to the original appointment procedure, and prior hearings may need to be reheard depending on whether a sole arbitrator or chairman is replaced.

Section 16. Termination of mandate and substitution of arbitrator Section 16(1) Where the mandate of an arbitrator is terminated under section 14 or 15 , a substitute arbitrator shall be appointed in accordance with the procedure that was applicable to the appointment of the arbitrator being replaced. Section 16(2)(a) where a sole arbitrator or the Chairman of the arbitral tribunal is replaced, any hearing previously held shall be held afresh; and Section 16(2)(b) where an arbitrator, other than a sole arbitrator or the Chairman of the arbitral tribunal is replaced, any hearings previously held may be held afresh at the discretion of the arbitral tribunal . Section 16(3) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalidated solely because there has been a change in the composition of the arbitral tribunal . Section 16(4) The Authority of an arbitrator is personal and ceases on his death. [Act No. 11 of 2009 , s. 12.]

Section 16Verify source

§ 16ACOMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 16A. Withdrawal of arbitratorProvision

The High Court may grant relief to an arbitrator who reasonably resigned and the court may make orders about the arbitrator's entitlement to fees or expenses.

Section 16A. Withdrawal of arbitrator Section 16A(1)(a) to grant him relief from any liability thereby incurred by him; and Section 16A(1)(b) to make such order as the court thinks fit with respect to his entitlement (if any) to fees or expenses or the repayment of any fees or expenses already paid. Section 16A(2) Where the High Court is satisfied that, in the circumstances, it was reasonable for the arbitrator to resign, it may grant relief on such terms as it may think fit. Section 16A(3) The decision of the High Court shall be final and shall not be subject to appeal. [Act No. 11 of 2009 , s. 13.]

Section 16AVerify source

§ 16BCOMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 16B. Immunity of arbitratorProvision

An arbitrator (and, by extension, a servant or agent acting with due authority and in good faith) is exempt from liability for acts or omissions done in good faith in the discharge or purported discharge of their functions; this does not affect liability for resignation or withdrawal.

Section 16B. Immunity of arbitrator Section 16B(1) An arbitrator shall not be liable for anything done or omitted to be done in good faith in the discharge or purported discharge of his functions as an arbitrator. Section 16B(2) Subsection (1) shall extend to apply to a servant or agent of an arbitrator in respect of the discharge or purported discharge by such a servant or agent, with due authority and in good faith, of the functions of the arbitrator. Section 16B(3) Nothing in this section affects any liability incurred by an arbitrator by reason of his resignation or withdrawal. [Act No. 11 of 2009 , s. 13.]

Section 16BVerify source

§ 17COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 17. Competence ofarbitral tribunalto rule on its jurisdictionCommencement

Rules on the arbitral tribunal’s competence to rule on its jurisdiction, including independence of arbitration clauses, timing for jurisdictional pleas, tribunal discretion to admit late pleas, tribunal power to rule preliminarily or on the merits, High Court review within 30 days of a preliminary ruling, finality of the High Court decision, and effect of pending High Court applications on awards.

Section 17. Competence ofarbitral tribunalto rule on its jurisdiction Section 17(1)(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and Section 17(1)(b) a decision by the arbitral tribunal that the contract is null and void shall not itself invalidate the arbitration clause. Section 17(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence, however, a party is not precluded from raising such a plea because he has appointed, or participated in the appointment of, an arbitrator. Section 17(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. Section 17(4) The arbitral tribunal may, in either of the cases referred to in subsection (2) or (3) admit a later plea if it considers the delay justified. Section 17(5) The arbitral tribunal may rule on a plea referred to in subsections (2) and (3) either as a preliminary question or in an arbitration award on the merits. Section 17(6) Where the arbitral tribunal rules as a preliminary question that it has jurisdiction, any party aggrieved by such ruling may apply to the High Court, within 30 days after having received notice of that ruling, to decide the matter. Section 17(7) The decision of the High Court shall be final and shall not be subject to appeal. Section 17(8) While an application under subsection (6) is pending before the High Court the parties may commence, continue and conclude arbitral proceedings, but no award in such proceedings shall take effect until the application is decided and such award shall be void if the application is successful. [Act No. 11 of 2009 , s. 14.]

Section 17Verify source

§ 18COMPOSITION AND JURISDICTION OF ARBITRAL TRIBUNAL - 18. Power ofarbitral tribunalProvision

The arbitral tribunal may order interim protective measures, require parties to provide security (including security for costs), may (or a party with its approval may) seek High Court assistance, and the High Court has equivalent power to make such orders when requested.

Section 18. Power ofarbitral tribunal Section 18(1)(a) order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject- matter of the dispute, with or without an ancillary order requiring the provision of appropriate security in connection with such a measure; or Section 18(1)(b) order any party to provide security in respect of any claim or any amount in dispute; or Section 18(1)(c) order a claimant to provide security for costs. Section 18(2) The arbitral tribunal or a party with the approval of the arbitral tribunal , may seek assistance from the High Court in the exercise of any power conferred on the arbitral tribunal under subsection (1). Section 18(3) If a request is made under subsection (2) the High Court shall have, for the purposes of the arbitral proceedings, the same power to make an order for the doing of anything which the arbitral tribunal is empowered to order under subsection (1) as it would have in civil proceedings before that Court, but the arbitral proceedings shall continue notwithstanding that a request has been made and is being considered by the High Court. [Act No. 11 of 2009 , s. 15.]

Section 18Verify source

Part IV

CONDUCT OF ARBITRAL PROCEEDINGS

§ 19CONDUCT OF ARBITRAL PROCEEDINGS - 19. Equal treatment of partiesProvision

Parties must be treated equally, and each party (subject to section 20) must be given a fair and reasonable opportunity to present their case.

Section 19. Equal treatment of parties Section The parties shall be treated with equality and each party shall subject to section 20 , be given a fair and reasonable opportunity to present his case. [Act No. 11 of 2009 , s. 16.]

Section 19Verify source

§ 19ACONDUCT OF ARBITRAL PROCEEDINGS - 19A. General duty of partiesProvision

The parties to arbitration must do all things necessary for the proper and expeditious conduct of the arbitral proceedings.

Section 19A. General duty of parties Section The parties to arbitration shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings. [Act No. 11 of 2009 , s. 17.]

Section 19AVerify source

§ 20CONDUCT OF ARBITRAL PROCEEDINGS - 20. Determination of rules of procedureProvision

Parties may agree on arbitral procedure; if not, the arbitral tribunal may set procedure and has powers over evidence, witnesses have court-like privileges, and the tribunal can order oath examinations and administer oaths.

Section 20. Determination of rules of procedure Section 20(1) Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in the conduct of the proceedings. Section 20(2) Failing an agreement under subsection (1), the arbitral tribunal may conduct the arbitration in the manner it considers appropriate, having regard to the desirability of avoiding unnecessary delay or expense while at the same time affording the parties a fair and reasonable opportunity to present their cases. Section 20(3) The power of the arbitral tribunal under subsection (2) includes the power to determine the admissibility, relevance, materiality and weight of any evidence and to determine at what point an argument or submission in respect of any matter has been fairly and adequately put or made. Section 20(4) Every witness giving evidence and every person appearing before an arbitral tribunal shall have at least the same privileges and immunities as witnesses and advocates in proceedings before a court. Section 20(5) The tribunal may direct that a party or witness shall be examined on oath or affirmation and may for that purpose administer or take the necessary oath or affirmation. [Act No. 11 of 2009 , s. 18.]

Section 20Verify source

§ 21CONDUCT OF ARBITRAL PROCEEDINGS - 21. Place ofarbitrationProvision

Section 21. Place ofarbitration Section 21(1) The parties are free to agree on the juridicial seat of arbitration and the location of any hearing or meeting. Section 21(2) Failing an agreement under subsection (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case and convenience of the parties. Section 21(3) Notwithstanding subsection (1) the arbitral tribunal may, unless otherwise agreed by the parties, meet at any location it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for the inspection of documents, goods or other property. [Act No. 11 of 2009 , s. 19.]

Section 21Verify source

§ 22CONDUCT OF ARBITRAL PROCEEDINGS - 22. Commencement of arbitral proceedingsCommencement

Arbitral proceedings in a particular dispute start on the date a request to refer the dispute to arbitration is received by the respondent, unless the parties agree otherwise.

Section 22. Commencement of arbitral proceedings Section Unless the parties otherwise agree, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request for the dispute to be referred to arbitration is received by the respondent.

Section 22Verify source

§ 23CONDUCT OF ARBITRAL PROCEEDINGS - 23. LanguageProvision

Parties may agree on the language(s) for arbitration; if they do not, the arbitral tribunal must decide the language(s); the tribunal may order translations of documentary evidence into the agreed or determined language(s).

Section 23. Language Section 23(1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings. Section 23(2) Failing an agreement under subsection (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings. Section 23(3) The agreement or determination under subsection (1) or (2) shall, unless otherwise specified, apply to any written statement by a party , any hearing and any arbitral award , decision or other communication by the arbitral tribunal . Section 23(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal .

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§ 24CONDUCT OF ARBITRAL PROCEEDINGS - 24. Statement of claim and defenceAmendment

Claimant must set out the facts, issues and remedies within the agreed or tribunal-determined time; respondent must state a defence; parties may submit relevant documents; parties may amend claims or defences unless tribunal disallows due to delay.

Section 24. Statement of claim and defence Section 24(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal , the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required particulars of such statements. Section 24(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit. Section 24(3) Except as otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

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§ 25CONDUCT OF ARBITRAL PROCEEDINGS - 25. Hearing and written representationsProvision

The arbitral tribunal must decide whether to hold oral hearings or proceed on documents; it must hold hearings unless the parties agree none and if a party requires them; the parties may appear in person or be represented.

Section 25. Hearing and written representations Section 25(1) Subject to any agreement to the contrary by the parties, the arbitral tribunal shall decide whether to hold oral hearing for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials furnished under section 24 . Section 25(2) Unless the parties have agreed that no hearings shall be held, the arbitral tribunal shall hold oral hearings at an appropriate stage of the proceedings, if so required by a party . Section 25(3) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purpose of inspection of documents, goods or other property. Section 25(4) All statements, documents or other information furnished to, or applications made to, the arbitral tribunal by one party shall be communicated to the other party , and any expert report or evidential document on which the arbitral tribunal may rely in making its decisions shall be communicated to the parties. Section 25(5) At any hearing or meeting of the arbitral tribunal of which notice is required to be given under subsection (3), or in any proceedings conducted on the basis of documents or other materials, the parties may appear or act in person or may be represented by any other person of their choice.

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§ 26CONDUCT OF ARBITRAL PROCEEDINGS - 26. Default of apartyProvision

If the claimant does not communicate the statement of claim under section 24(1), the arbitral tribunal must terminate the arbitral proceedings.

Section 26. Default of aparty Section the claimant fails to communicate his statement of claim in accordance with section 24 (1), the arbitral tribunal shall terminate the arbitral proceedings;

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§ 27CONDUCT OF ARBITRAL PROCEEDINGS - 27. ExpertsProvision

Section 27 lets an arbitral tribunal appoint experts and require parties to give experts relevant information; experts must participate in hearings when requested or ordered and must provide documents or items they received to prepare their report upon a party's request unless the parties agree otherwise.

Section 27. Experts Section 27(1)(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal ; and Section 27(1)(b) require a party to give the expert any relevant information or to produce or provide access to, any relevant documents, goods or other property for inspection. Section 27(2) Unless otherwise agreed by the parties, if a party requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties shall have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue. Section 27(3) Unless otherwise agreed by the parties, the expert shall, upon the request of a party , make available to that party for examination all documents, goods or other property in the expert’s possession which were provided to him in order to prepare his report. [Act No. 11 of 2009 , s. 21.]

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§ 28CONDUCT OF ARBITRAL PROCEEDINGS - 28. Court assistance in taking evidenceProvision

The arbitral tribunal or (with the tribunal's approval) a party may ask the High Court for help taking evidence; the High Court may carry out such requests within its competence and according to its rules on taking evidence.

Section 28. Court assistance in taking evidence Section The arbitral tribunal , or a party with the approval of the arbitral tribunal , may request from the High Court assistance in taking evidence, and the High Court may execute the request within its competence and according to its rules on taking evidence.

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Part V

ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS

§ 29ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 29. Rules applicable to substance of disputeProvision

The arbitral tribunal must decide the dispute according to the law chosen by the parties; if no choice is made it must apply the law it considers appropriate; it may decide according to justice and fairness only if expressly authorized by the parties; it must follow the contract terms and trade usages.

Section 29. Rules applicable to substance of dispute Section 29(1) The arbitral tribunal shall decide the dispute in accordance with the rules of law chosen by the parties as applicable to the substance of the dispute. Section 29(2) The choice of the law or legal system of any designated state shall be construed, unless otherwise agreed by the parties, as directly referring to the substantive law of that state and not to its conflict of laws rules. Section 29(3) Failing a choice of the law under subsection (1) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances of the dispute. Section 29(4) The arbitral tribunal shall decide on the substance of the dispute according to considerations of justice and fairness without being bound by the rules of law, only if the parties have expressly authorized it to do so. Section 29(5) In all cases, the arbitral tribunal shall decide in accordance with the terms of the particular contract and shall take into account the usages of the trade applicable to the particular transaction.

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§ 30ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 30. Decision making by panel of arbitratorsProvision

Decisions of a multi-member arbitral tribunal must be made by a majority of its members unless the parties agree otherwise; if authorized by the parties or all members, the Chairman may decide questions of procedure.

Section 30. Decision making by panel of arbitrators Section 30(1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its members. Section 30(2) Notwithstanding subsection (1), if authorized by the parties or all the members of the arbitral tribunal , questions of procedure may be decided by the Chairman. [Act No. 11 of 2009 , s. 22.]

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§ 31ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 31. SettlementProvision

If the parties settle during arbitral proceedings, the arbitral tribunal must terminate the proceedings and, if the parties request it and the tribunal does not object, record the settlement as an arbitral award on agreed terms.

Section 31. Settlement Section 31(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal , record the settlement in the form of an arbitral award on agreed terms. Section 31(2) An arbitral award on agreed terms shall be made in accordance with section 32 and shall state that it is an arbitral award . Section 31(3) An arbitral award on agreed terms has the same status and effect as any other arbitral award on the substance of the dispute.

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§ 32ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 32. Form and contents ofarbitral awardProvision

An arbitral award must be in writing and signed by the arbitrator(s); in multi-arbitrator tribunals a majority signature suffices if reasons for omitted signatures are stated; reasons need not be given where the parties agreed or the award is on agreed terms under section 31.

Section 32. Form and contents ofarbitral award Section 32(1) An arbitral award shall be made in writing and shall be signed by the arbitrator or the arbitrators. Section 32(2) For the purposes of subsection (1), in arbitral proceedings with more than one arbitrator, the signatures of the majority of all the arbitrators shall be sufficient so long as the reasons for any omitted signature are stated. Section 32(3)(a) the parties have agreed that no reasons are to be given; or Section 32(3)(b) the award is an arbitral award on agreed terms under section 31 . Section 32(4) The arbitral award shall state the date of the award and the juridical seat of arbitration as determined in accordance with section 21 (1), and the award shall be deemed to have been made at that juridical seat. Section 32(5) Subject to section 32B after the arbitral award is made, a signed copy shall be delivered to each party. Section 32(6) An arbitral tribunal may, at any time, make a partial award by which some, but not all, of the issues between the parties are determined, and the provisions of this Act applying to awards of an arbitral tribunal shall, except in so far as a contrary intention appears, apply in respect of such partial award. [Act No. 11 of 2009 , s. 23.]

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§ 32AARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 32A. Effect of awardProvision

Unless the parties agree otherwise, an arbitral award is final and binding on the parties; no recourse against the award is available except in the manner provided by this Act.

Section 32A. Effect of award Section Except as otherwise agreed by the parties, an arbitral award is final and binding upon the parties to it, and no recourse is available against the award otherwise than in the manner provided by this Act. [Act No. 11 of 2009 , s. 24.]

Section 32AVerify source

§ 32BARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 32B. Costs and expensesProvision

Unless the parties agree otherwise, the arbitral tribunal determines and apportions arbitration costs in its award; if no award does so, each party bears its own legal expenses and an equal share of tribunal fees; the tribunal may withhold an award until its fees are paid; a party may pay those fees into court and apply to the High Court to determine proper fees; the High Court's decision is final; subsections (3)–(6) override agreements to the contrary.

Section 32B. Costs and expenses Section 32B(1) Unless otherwise agreed by the parties, the costs and expenses of an arbitration , being the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal and any other expenses related to the arbitration , shall be as determined and apportioned by the arbitral tribunal in its award under this section, or any additional award under section 34 (5). Section 32B(2) Unless otherwise agreed by the parties, in the absence of an award or additional award determining and apportioning the costs and expenses of the arbitration , each party shall be responsible for the legal and other expenses of that party and for an equal share of the fees and expenses of the arbitral tribunal and any other expenses relating to the arbitration . Section 32B(3) The arbitral tribunal may withhold the delivery of an award to the parties until full payment of the fees and expenses of the arbitral tribunal is received. Section 32B(4) If the arbitral tribunal has, under subsection (3), withheld the delivery of an award, a party to the arbitration may, upon notice to the other party and to the arbitral tribunal , and after payment into court of the fees and expenses demanded by the arbitral tribunal , apply to the High Court for an order directing the manner in which the fees and expenses properly payable to the arbitral tribunal shall be determined. Section 32B(5) The fees and expenses found to be properly payable pursuant to such an order shall be paid out of the moneys paid into court and the balance of those moneys. if any, shall be refunded to the applicant. Section 32B(6) The decision of the High Court on an application under subsection (4) shall be final and not subject to appeal. Section 32B(7) The provisions of subsections (3) to (6) have effect notwithstanding any agreement to the contrary made between the parties. [Act No. 11 of 2009 , s. 24.]

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§ 32CARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 32C. InterestProvision

An arbitral award may provide for payment of simple or compound interest as specified in the award.

Section 32C. Interest Section Unless otherwise agreed by the parties, to the extent that the rules of law applicable to the substance of the dispute permit, an arbitral award may include provision for the payment of simple or compound interest calculated from such date, at such rate and with such rests as may be specified in the award. [Act No. 11 of 2009 , s. 24.]

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§ 33ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 33. Termination of arbitral proceedingsProvision

Section 33 sets out how arbitral proceedings end: by a final award or by tribunal order, and lists three specific grounds for termination including claimant withdrawal (subject to objection), parties' agreement, and tribunal finding proceedings unnecessary or impossible; it also states the tribunal's mandate ends when proceedings terminate, subject to sections 34 and 35.

Section 33. Termination of arbitral proceedings Section 33(1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under subsection (2). Section 33(2)(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute; Section 33(2)(b) the parties agree on the termination of the arbitral proceedings; or Section 33(2)(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible. Section 33(3) Subject to sections 34 and 35 , the mandate of the arbitral tribunal shall terminate upon the termination of the arbitral proceedings.

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§ 34ARBITRAL AWARD AND TERMINATION OF ARBITRAL PROCEEDINGS - 34. Correction and interpretation of arbitral award; additional awardInterpretation

Allows a party to request corrections, clarifications or additional awards and requires the arbitral tribunal to act within specified time limits if the requests are justified; the tribunal may also correct some errors on its own and extend time limits if necessary.

Section 34. Correction and interpretation of arbitral award; additional award Section 34(1)(a) a party may, upon notice in writing to the other party, request the arbitral tribunal to correct in the arbitral award any computation errors, any clerical or typographical errors or any other errors of a similar nature; and Section 34(1)(b) a party may, upon notice in writing to the other party, request the arbitral tribunal to clarify or remove any ambiguity concerning specific point or part of the arbitral award. Section 34(2) If the tribunal considers a request made under subsection (1) to be justified it shall, after giving the other party fourteen days to comment, make the correction or furnish the clarification within thirty days whether the comments have been received or not, and the correction or clarification shall be deemed to be part of the award. Section 34(3) The arbitral tribunal may correct any error of the type referred to in subsection (1)(a) on its own initiative within thirty days after the date of the arbitral award. Section 34(4) Unless otherwise agreed by the parties, a party may upon notice in writing to the other party, within thirty days after receipt of the arbitral award, request the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award. Section 34(5) If the arbitral tribunal considers the request made under subsection (4) to be justified, it shall make the additional arbitral award within sixty days. Section 34(6) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correction, give an interpretation or make an additional arbitral award under subsection (2) or (5). Section 34(7) Section 32 shall apply to a correction or an interpretation of the arbitral award or to an additional arbitral award made under this section. [Act No. 11 of 2009 , s. 25.]

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Part VI

RECOURSE TO HIGH COURT AGAINST ARBITRAL AWARD

§ 35RECOURSE TO HIGH COURT AGAINST ARBITRAL AWARD - 35. Application for setting asidearbitral awardProvision

A party cannot apply to set aside an arbitral award after 3 months from when they received the award; the High Court may suspend set-aside proceedings to allow the tribunal to resume or cure defects if requested by a party.

Section 35. Application for setting asidearbitral award Section 35(1) Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3). Section 35(2)(a) that a party to the arbitration agreement was under some incapacity; or Section 35(2)(a)(i) that a party to the arbitration agreement was under some incapacity; or Section 35(2)(a)(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, the laws of Kenya; or Section 35(2)(a)(iii) 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; or Section 35(2)(a)(iv) 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 , provided that if the decisions on matters referred to arbitration can be separated from those not so referred, only that part of the arbitral award which contains decisions on matters not referred to arbitration may be set aside; or Section 35(2)(a)(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless that agreement was in conflict with a provision of this Act from which the parties cannot derogate; or failing such agreement, was not in accordance with this Act; or Section 35(2)(a)(vi) the making of the award was induced or affected by fraud, bribery, undue influence or corruption; Section 35(2)(b) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or Section 35(2)(b)(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or Section 35(2)(b)(ii) the award is in conflict with the public policy of Kenya. Section 35(3) An application for setting aside the arbitral award may not be made after 3 months have elapsed from the date on which the party making that application had received the arbitral award , or if a request had been made under section 34 from the date on which that request had been disposed of by the arbitral award. Section 35(4) The High Court, when required to set aside an arbitral award , may, where appropriate and if so requested by a party suspend the proceedings to set aside the arbitral award for such period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of the arbitral tribunal will eliminate the grounds for setting aside the arbitral award . [Act No. 11 of 2009 , s. 26.]

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Part VII

RECOGNITION AND ENFORCEMENT OF AWARDS

§ 36RECOGNITION AND ENFORCEMENT OF AWARDS - 36. Recognition and enforcement of awardsProvision

Domestic and international arbitral awards are to be recognized and enforced; parties must provide certified English translations when awards or agreements are not in English.

Section 36. Recognition and enforcement of awards Section 36(1) A domestic arbitral award shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37 . Section 36(2) An international arbitration award shall be recognised as binding and enforced in accordance to the provisions of the New York Convention or any other convention to which Kenya is signatory and relating to arbitral awards. Section 36(3)(a) the original arbitral award or a duly certified copy of it; and Section 36(3)(b) the original arbitration agreement or a duly certified copy of it. Section 36(4) If the arbitral award or arbitration agreement is not made in the English language, the party shall furnish a duly certified translation of it into the English language. Section 36(5) In this section. the expression "New York Convention" means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted by the United Nations General Assembly in New York on the 10th June, 1958, and acceded to by Kenya on the 10th February, 1989, with a reciprocity reservation. [Act No. 11 of 2009 , s. 27.]

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§ 37RECOGNITION AND ENFORCEMENT OF AWARDS - 37. Grounds for refusal of recognition or enforcementProvision

Section 37 lists grounds on which recognition or enforcement of an arbitral award may be refused, and allows the High Court to adjourn its decision or order security where an application to set aside or suspend an award has been made.

Section 37. Grounds for refusal of recognition or enforcement Section 37(1)(a) a party to the arbitration agreement was under some incapacity; or Section 37(1)(a)(i) a party to the arbitration agreement was under some incapacity; or Section 37(1)(a)(ii) the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication of that law, under the law of the state where the arbitral award was made; Section 37(1)(a)(iii) the party against whom the arbitral award is invoked was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or Section 37(1)(a)(iv) the arbitral award deals with a dispute not contemplated by or not falling within the terms of the reference to arbitration , or it contains decisions on matters beyond the scope of the reference to arbitration , provided that if the decisions on matters referred to arbitration can be separated from those not so referred, that part of the arbitral award which contains decisions on matters referred to arbitration may be recognised and enforced; or Section 37(1)(a)(v) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing any agreement by the parties, was not in accordance with the law of the state where the arbitration took place; or Section 37(1)(a)(vi) the arbitral award has not yet become binding on the parties or has been set aside or suspended by a court of the state in which, or under the law of which, that arbitral award was made; or Section 37(1)(a)(vii) the making of the arbitral award was induced or affected by fraud, bribery, corruption or undue influence; Section 37(1)(b) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or Section 37(1)(b)(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of Kenya; or Section 37(1)(b)(ii) the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya. Section 37(2) If an application for the setting aside or suspension of an arbitral award has been made to a court referred to in subsection (1)(a)(vi), the High Court may, if it considers it proper, adjourn its decision and may also, on the application of the party , claiming recognition or enforcement of the arbitral award , order the other party to provide appropriate security. [Act No. 11 of 2009 , s. 28.]

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Part VIII

MISCELLANEOUS PROVISIONS

§ 38MISCELLANEOUS PROVISIONS - 38. Effect of bankruptcy on agreement to settle differences byarbitrationCommencement

Section 38: Effects of bankruptcy on arbitration agreements — trustees may apply to the High Court to refer matters to arbitration; the High Court may order referral if it is of the opinion the matter should be arbitrated.

Section 38. Effect of bankruptcy on agreement to settle differences byarbitration Section 38(1)(a) it is provided by a term in a contract to which a bankrupt is a party that any differences arising out of or in connection with the contract are to be referred to arbitration ; and Section 38(1)(b) the bankruptcy trustee adopts the contract, Section 38(2)(a) a person who has been adjudged bankrupt had, before the commencement of the bankruptcy, become a party to an arbitration agreement ; Section 38(2)(b) any matter to which the agreement applies requires to be determined in connection with or for the purposes of the bankruptcy proceedings; and Section 38(2)(c) the case is one to which subsection (1) does not apply. Section 38(3)(a) if there is no creditors' committee, the bankruptcy trustee; or Section 38(3)(b) if there is a creditors' committee, the bankruptcy trustee with the consent of the creditors' committee, may apply to the High Court for an order directing the relevant matter to be referred to arbitration in accordance with the agreement. Section 38(4) On the hearing of an application made under subsection (3), the High Court may, if of the opinion that that matter ought to be determined by arbitration , make an order to that effect. Section 38(5)(a) the arbitration is a domestic one; Section 38(5)(b) the bankrupt is a citizen of, or ordinarily resides in, Kenya; or Section 38(5)(c) the law of Kenya is applicable according to the rules relating to the conflict of laws.

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§ 39MISCELLANEOUS PROVISIONS - 39. Questions of law arising in domesticarbitrationProvision

A party may apply or appeal to the High Court (and, in certain cases, to the Court of Appeal) on questions of law arising in domestic arbitration; courts may determine such questions and confirm, vary, set aside or remit awards; applications or appeals must follow the Rules of Court time limits and manner.

Section 39. Questions of law arising in domesticarbitration Section 39(1)(a) an application by any party may be made to a court to determine any question of law arising in the course of the arbitration ; or Section 39(1)(b) an appeal by any party may be made to a court on any question of law arising out of the award, such application or appeal, as the case may be, may be made to the High Court. Section 39(2)(a) determine the question of law arising; Section 39(2)(b) confirm, vary or set aside the arbitral award or remit the matter to the arbitral tribunal for re-consideration or, where another arbitral tribunal has been appointed, to that arbitral tribunal for consideration. Section 39(3)(a) if the parties have so agreed that an appeal shall lie prior to the delivery of the arbitral award ; or Section 39(3)(b) the Court of Appeal, being of the opinion that a point of law of general importance is involved the determination of which will substantially affect the rights of one or more of the parties, grants leave to appeal, and on such appeal the Court of Appeal may exercise any of the powers which the High Court could have exercised under subsection (2). Section 39(4) An application or appeal under this section shall be made within the time limit and in the manner prescribed by the Rules of Court applicable, as the case may be, in the High Court or the Court of Appeal. Section 39(5) When an arbitral award has been varied on appeal under this section, the award so varied shall have effect as if it were the award of the arbitral tribunal concerned. [Act No. 11 of 2009 , s. 29.]

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§ 40MISCELLANEOUS PROVISIONS - 40. RulesProvision

Rules about the recognition and enforcement of arbitral awards and related proceedings.

Section 40. Rules Section the recognition and enforcement of arbitral awards and all proceedings consequent thereon or incidental thereto;

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§ 41MISCELLANEOUS PROVISIONS - 41. Government to be boundProvision

The Act binds the Government.

Section 41. Government to be bound Section This Act shall bind the Government.

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