Paged Arbitration Act No. 4 of 1995 - Kenya Law Reports

1 LAWS OF Kenya Arbitration ACT No. 4 of 1995 Revised Edition 2012 [2010] Published by the National Council for Law Reporting with the Authority of the Attorney-General [Rev. 2012] No. 4 of 1995 Arbitration 3 [Issue 1] NO. 4 OF 1995 Arbitration ACT ARRANGEMENT OF SECTIONS PART I PRELIMINARY Section 1. Short title. 2. Application. 3. Interpretation. PART II GENERAL PROVISIONS 4. Form of Arbitration agreement. 5. Waiver of right to object. 6. Stay of legal proceedings. 7. interim measures by court. 8. Death of a party. 9. Receipt of, written communications. 10. Extent of court intervention. PART III COMPOSITION AND JURISDICTION OF arbitral TRIBUNAL 11. Determination of number of arbitrators. 12. Appointment of arbitrators. 13. Grounds for challenge. 14. Challenge procedure. 15. Failure or impossibility to act. 16. Termination of mandate and substitution of arbitrator.

2 16A. Withdrawal of arbitrator. 16B. Immunity of arbitrator. 17. Competence of arbitral tribunal to rule on its jurisdiction. 18. Power of arbitral tribunal. PART IV CONDUCT OF arbitral PROCEEDINGS 19. Equal treatment of parties. 19A. General duty of parties. 20. Determination of rules of procedure. 21. Place of Arbitration . 22. Commencement of arbitral proceedings. 23. Language. 24. Statement of claim and defence. 25. Hearings and written representations. 26. Default of a party. 27. Experts. 28. Court assistance in taking evidence. No. 4 of 1995 [Rev. 2012] Arbitration [Issue 1] 4 PART V arbitral AWARD AND TERMINATION OF arbitral PROCEEDINGS Section 29. Rules applicable to substance of dispute. 30. Decision making by panel of arbitrators. 31. Settlement. 32. Form and contents of arbitral award. 32A. Effect of award. 32B. Costs and expenses.

3 32C. Interest. 33. Termination of arbitral proceedings. 34. Correction and interpretation of arbitral award; additional award. PART VI RECOURSE TO HIGH COURT AGAINST arbitral AWARD 35. Application for setting aside arbitral award. PART VII RECOGNITION AND ENFORCEMENT OF awards 36. Recognition and enforcement of awards . 37. Grounds for refusal of recognition or enforcement. PART VIII MISCELLANEOUS PROVISIONS 38. Bankruptcy. 39. Questions of law arising in domestic Arbitration . 40. Rules. 41. Government to be bound. 42. Repeal of Cap. 49 and saving. [Rev. 2012] No. 4 of 1995 Arbitration 5 [Issue 1] NO. 4 OF 1995 Arbitration ACT [Date of assent: 10th August, 1995.] [Date of commencement: 2nd January, 1996.] An Act of Parliament to repeal and re-enact with amendments the Arbitration Act and to provide for connected purposes [ 394/1957, Act No. 11 of 2009, 48/2010.] PART I PRELIMINARY 1.

4 Short title This Act may be cited as the Arbitration Act, 1995. 2. Application Except as otherwise provided in a particular case the provisions of this Act shall apply to domestic Arbitration and international Arbitration . 3. Interpretation (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.

5 (2) An Arbitration is domestic if the Arbitration agreement provides expressly or by implication for Arbitration in Kenya : and at the time when proceedings are commenced or the Arbitration is entered into (a) where the Arbitration is between individuals, the parties are nationals of Kenya or are habitually resident in Kenya ; (b) where the Arbitration is between bodies corporate, the parties are incorporated in Kenya or their central management and control are exercised in Kenya ; (c) where the Arbitration is between an individual and a body corporate (i) the party who is an individual is a national of Kenya or is habitually resident in Kenya ; and No. 4 of 1995 [Rev. 2012] Arbitration [Issue 1] 6 (ii) the party that is a body corporate is incorporated in Kenya or its central management and control are exercised in Kenya : or (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 .

6 (3) An Arbitration is international if (a) the parties to an Arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states; (b) one of the following places is situated outside the state in which the parties have their places of business (i) the juridical seat of Arbitration is determined by or pursuant to the Arbitration agreement; or (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 (c) the parties have expressly agreed that the subject-matter of the Arbitration agreement relates to more than one state. (4) For the purpose of subsection (3) (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 (b) if a party does not have a place of business, reference is to be made to his habitual residence.

7 (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. (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. (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.] PART II GENERAL PROVISIONS 4. Form of Arbitration agreement (1) An Arbitration agreement may be in the form of an Arbitration clause in a contract or in the form of a separate agreement.

8 (2) An Arbitration agreement shall be in writing. [Rev. 2012] No. 4 of 1995 Arbitration 7 [Issue 1] (3) An Arbitration agreement is in writing if it is contained in (a) a document signed by the parties; (b) an exchange of letters, telex, telegram, facsimile, electronic mail or other means of telecommunications which provide a record of the agreement; or (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. (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.] 5. Waiver of right to object 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.

9 [Act No. 11 of 2009, s. 4.] 6. Stay of legal proceedings (1) A court before which proceedings are brought in a matter which is the subject of an Arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or otherwise acknowledges the claim against which the stay of proceedings is sought, stay the proceedings and refer the parties to Arbitration unless it finds (a) that the Arbitration agreement is null and void, inoperative or incapable of being performed; or (b) that there is not in fact any dispute between the parties with regard to the matters agreed to be referred to Arbitration . (2) Proceedings before the court shall not be continued after an application under subsection (1) has been made and the matter remains undetermined. (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.

10 [Act No. 11 of 2009, s. 5.] 7. interim measures by court (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. (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. No. 4 of 1995 [Rev. 2012] Arbitration [Issue 1] 8 8. Death of a party (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. (2) The authority of an arbitrator is not revoked by the death of any party by whom he was appointed.