Enforcement of Foreign Arbitral Awards in Kenya: Legal Framework, Recent Decisions & Enforcement Process
- Muhoro & Gitonga Associates
- Mar 13, 2024
- 6 min read
Updated: Oct 13
Table of Contents
What is a Foreign Arbitral Award
Why Enforcement Matters in Kenya
Legal Framework Governing Enforcement
4.1 Arbitration Act, 1995 (Kenya)
4.3 Other International and Regional Instruments
6.1 Filing the Application with the High Court
6.3 Role of the High Court: Hearing & Recognition
6.4 Execution as a Decree of the Court
Grounds for Refusal or Setting Aside Awards
Public Policy in Arbitration: What Counts in Kenya Today
Practical Challenges & Solutions
Best Practices for Enforcing Awards Successfully
1. Introduction
In today’s globalized economy, arbitration has become the preferred method for resolving international commercial disputes. However, arbitration is only effective if the resulting award can be enforced.
Kenya plays a central role in East Africa as a hub for trade, investment, and cross-border commercial activity. Its courts and arbitration laws are aligned with international standards, making Kenya a trusted jurisdiction for recognition and enforcement of foreign arbitral awards.
This article provides an updated guide to the enforcement of foreign arbitral awards in Kenya, covering the legal framework, latest judicial trends, procedural steps, and practical insights for successful enforcement.
2. What is a Foreign Arbitral Award
A foreign arbitral award is an arbitral decision made outside the jurisdiction where enforcement is sought. For example, if a tribunal seated in London or Singapore renders an award and one seeks to enforce it in Kenya, it becomes a “foreign” award.
Such awards often arise in international commercial contracts involving parties from different jurisdictions. Their enforcement ensures that arbitral decisions are recognized and upheld globally.
3. Why Enforcement Matters in Kenya
Enforcement gives life to arbitral awards. It ensures that parties who prevail in arbitration can actually obtain relief.
For investors and multinational businesses, enforceability promotes certainty, trust, and investment confidence. Kenya’s robust legal framework for arbitration enhances its reputation as a preferred regional hub for dispute resolution, attracting more foreign investment and international contracts.
4. Legal Framework Governing Enforcement
The Arbitration Act (Cap. 49, Laws of Kenya) is the primary legislation governing arbitration. It is modeled on the UNCITRAL Model Law, ensuring consistency with international best practices.
Section 36 provides that arbitral awards, whether domestic or foreign, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced as a decree of the Court.
Section 37 outlines the limited grounds upon which enforcement may be refused, such as invalid arbitration agreements, procedural irregularities, or violations of public policy.
Kenya is a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).
The Convention requires member states to recognize and enforce arbitral awards made in other contracting states, subject to limited exceptions under Article V, such as lack of jurisdiction, procedural unfairness, or conflict with public policy.
Kenya has domesticated the Convention through the Arbitration Act, meaning that foreign awards from other Convention countries are directly enforceable in Kenya.
4.3 Other International and Regional Instruments
Kenya’s arbitration regime is also influenced by its obligations under international and regional frameworks such as the East African Community (EAC) Treaty, which encourages harmonization of commercial laws.
Additionally, Kenya’s 2010 Constitution emphasizes the use of alternative dispute resolution mechanisms and ensures that international law, where ratified, forms part of Kenyan law.
5. Key Recent Cases (2024–2025)
Recent judicial decisions demonstrate Kenya’s evolving approach to enforcement of foreign arbitral awards:
United Nations v Hashi Energy Limited (In Liquidation) (Commercial Arbitration Cause E070 of 2024) [2025] KEHC 11264 (KLR) (Commercial and Tax) (30 July 2025) (Ruling) – The High Court allowed enforcement of a Permanent Court of Arbitration (PCA) award despite the respondent being under liquidation, holding that a company in voluntary liquidation retains legal personality until dissolution.
Safaricom Limited v Abiero & another (Commercial Arbitration Cause E057 of 2024) [2024] KEHC 15743 (KLR) (Commercial and Tax) (6 December 2024) (Ruling) – The Court granted enforcement after dismissing an application to set aside the award, reaffirming that Kenyan courts favor finality in arbitration.
Africare Limited v Sitafalwalla & another (Commercial Arbitration Cause E084 of 2023) [2024] KEHC 7268 (KLR) (Commercial & Admiralty) (13 June 2024) (Ruling) – The Court enforced a foreign arbitral award despite procedural objections, finding that public policy grounds were not sufficiently established.
Narok County Government v Equity Bank Limited (Commercial Miscellaneous Application E004 of 2024) [2025] KEHC 11873 (KLR) (31 July 2025) (Ruling) – The Court refused enforcement on public policy grounds, citing bias and unfair interest rates as contrary to Kenya’s constitutional and moral principles.
Sogea - Satom SAS & another v Kenya Airports Authority (Commercial Arbitration Cause E007 of 2023) [2025] KEHC 11729 (KLR) (Commercial and Tax) (31 July 2025) (Ruling) – The Court emphasized the importance of submitting original or duly certified documents and proper translations, as required under Section 36.
These cases highlight Kenya’s increasingly pro-enforcement stance, tempered by the need to safeguard due process and public policy.
6. Enforcement Process in Kenya
6.1 Filing the Application with the High Court
Enforcement begins with an application to the High Court of Kenya, typically filed in the Commercial and Tax Division at Milimani, or in the region where enforcement is sought. The application is made under Section 36 of the Arbitration Act.
6.2 Required Documentation
The application must include:
The original arbitral award or a certified copy.
The original arbitration agreement or a certified copy.
A certified English translation if the award or agreement is in another language.
An affidavit detailing facts of the award and confirming its finality and enforceability.
6.3 Role of the High Court: Hearing & Recognition
The High Court reviews the application to ensure compliance with statutory requirements and the New York Convention. Both parties are heard before the court issues a ruling.
If satisfied, the Court recognizes the award and grants leave to enforce it as a decree of the High Court.
6.4 Execution as a Decree of the Court
Once recognized, the award is enforced like any other court judgment through attachment of property, garnishee proceedings, or other civil execution mechanisms under the Civil Procedure Rules.
7. Grounds for Refusal or Setting Aside Awards
Kenyan courts may refuse enforcement only under limited circumstances:
Invalid or non-existent arbitration agreement.
Lack of jurisdiction by the arbitral tribunal.
Procedural irregularities or lack of notice to a party.
The award exceeds the terms of the arbitration agreement.
The award has been set aside or suspended in the country of origin.
Enforcement would contravene Kenya’s public policy.
These grounds are interpreted narrowly to uphold the finality and integrity of arbitration.
8. Public Policy in Arbitration: What Counts in Kenya Today
Public policy is one of the most debated grounds for refusing enforcement. Kenyan courts have clarified that “public policy” must be clear, definite, and rooted in the Constitution or written law not a subjective moral or political opinion.
In Narok County Government v Equity Bank Ltd, the court held that enforcing an award tainted by bias or grossly unfair terms could breach Kenya’s public policy. Conversely, in United Nations v Hashi Energy Ltd, the court reaffirmed that mere dissatisfaction or liquidation of a party is not a public policy violation.
9. Practical Challenges & Solutions
Document Deficiencies: Ensure all documents are original or certified, with translations where necessary.
Judicial Delays: Engage counsel familiar with court practice to fast-track applications.
Public Policy Ambiguity: Anticipate possible objections and prepare constitutional and legal arguments to counter them.
Complexity of Procedures: Work with experienced arbitration counsel to ensure technical compliance.
10. Best Practices for Enforcing Awards Successfully
Draft arbitration clauses clearly and in compliance with Kenyan law.
Keep detailed records of all arbitration proceedings.
File enforcement applications promptly.
Engage local arbitration experts with a track record in cross-border enforcement.
Investigate the debtor’s assets in Kenya before initiating enforcement.
These steps enhance efficiency and minimize resistance during enforcement.
11. Conclusion
Kenya has developed a strong and reliable system for enforcing foreign arbitral awards, anchored in the Arbitration Act and the New York Convention. Recent judicial trends reveal a balanced approach: while courts are pro-enforcement, they will not hesitate to reject awards that violate due process or public policy.
With proper documentation, timely action, and expert legal representation, parties can confidently enforce foreign arbitral awards in Kenya’s courts.
12. Frequently Asked Questions (FAQs)
Q1: Is there a time limit for enforcing a foreign arbitral award in Kenya?
There is no explicit limitation period under the Arbitration Act, but parties should act without undue delay. Late applications risk procedural objections.
Q2: Can a company under liquidation resist enforcement?
Not automatically. In United Nations v Hashi Energy Ltd (In Liquidation), the court held that a company in voluntary liquidation still retains legal status until formally dissolved.
Q3: Does Kenya require the award to be in English?
Yes. If not in English, a certified translation must be filed alongside the application.
Q4: What constitutes a violation of public policy?
A violation occurs only when enforcement contradicts Kenya’s Constitution, statutory law, or fundamental principles of morality and justice.
Q5: Can a Kenyan court enforce an award set aside in another country?
No. If an award has been annulled or suspended in its country of origin, Kenyan courts will generally refuse enforcement under Article V of the New York Convention.
To explore this further, see the Arbitration Act 1995 and The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
