An arbitral award is meant to end the dispute. In most cases it does: the tribunal’s decision is final and binding, and the successful party can enforce it through the courts. But the losing party may consider a challenge, and the winning party may need to take steps to turn the award into something enforceable. This article explains the limited grounds for setting aside an award, the enforcement route and the practical steps that follow the award.
Quick answer
An award made in a Kenyan arbitration is binding and can be enforced as if it were a decree of the court. A party may apply to set it aside only on limited grounds, such as a defect in the arbitration agreement, a procedural irregularity, the tribunal exceeding its jurisdiction or a breach of public policy. The application must be made promptly and on evidence. Enforcement and challenge can run in parallel, so the winning party should act early.
The award and its finality
The Arbitration Act 1995 gives the tribunal’s award final and binding effect, subject to the limited recourse the Act allows. The award should deal with the claims, the relief granted and usually the costs of the arbitration. Where the tribunal has reserved a point for a further award, or where a correction or interpretation is needed, the Act and the agreed rules set out the mechanism.
The successful party should read the award carefully and note what it orders, by when, and against whom. Those details determine the enforcement steps and the documents required.
Setting aside: the limited grounds
A challenge to an award is not an appeal on the merits. The court does not substitute its view of the facts for the tribunal’s. The grounds for setting aside are limited and relate to the integrity of the process, such as a party’s incapacity, an invalid arbitration agreement, the absence of proper notice, the award going beyond the scope of the reference, a tribunal not properly constituted or a procedure not in accordance with the agreement.
Public policy is also a recognised ground, but it is applied narrowly. A disagreement with the tribunal’s reasoning, or a belief that the award is harsh, is not enough. The challenge must identify a defect the Act recognises and support it with the procedural record.
Timing and procedure after the award
The period for a challenge is strict and runs from a defined point after the award. It should be confirmed immediately on receipt of the award, because a late application can be dismissed regardless of its merits. The procedure, the court and the documents required depend on the seat and the rules chosen, and the point should be checked with advice.
A challenge does not automatically stay enforcement. A party seeking to hold enforcement back should apply for the relief promptly and support it with evidence of the potential loss or that the application has a realistic prospect of success.
Recognition and enforcement in Kenya
An award made in Kenya is enforced through the court process. The successful party applies to the court for recognition and enforcement, supporting the application with the award and the arbitration agreement, and the court may order that the award be enforced as a decree. Once enforced, the ordinary methods of execution become available, including attachment and garnishee proceedings where appropriate.
The documents and procedure should be prepared before the application is filed. The article on starting commercial arbitration in Kenya explains the earlier stages of the process, and the Arbitration in Kenya guide library covers the surrounding decisions.
Foreign awards: recognition and enforcement
Kenya recognises and enforces foreign arbitral awards under the framework in the Arbitration Act 1995 and the international convention on the recognition and enforcement of foreign arbitral awards to which Kenya is a party. A foreign award is not enforced as a matter of course: the applicant must satisfy the court that the award falls within the framework, and the respondent may raise the limited grounds on which recognition may be refused.
Where the losing party has assets in more than one country, enforcement strategy should consider where the assets are and which courts can act on them. The seat of the arbitration, the place of the assets and the award debtor’s location all matter.
Refusing enforcement
Recognition or enforcement may be refused on limited grounds, which overlap with the grounds for setting aside. They include defects in the arbitration agreement, a party not being given a proper opportunity to present its case, the award dealing with matters outside the scope of the reference, or the award being contrary to public policy. The grounds should be raised by the party resisting enforcement and supported with evidence.
The practical message is that the award should be reviewed early by both sides. The winning party should identify the enforcement route and any risk of challenge; the losing party should assess whether a recognised ground exists before incurring the cost of an application.
Practical steps and records
| Step | What to do |
|---|---|
| Read the award | Note the orders, amounts, dates, costs and any correction or further award |
| Confirm the deadline | Diary the challenge and enforcement periods immediately |
| Assemble the record | Award, arbitration agreement, procedural orders, correspondence and proof of service |
| Choose the route | Enforcement in Kenya or abroad, and the court with jurisdiction |
| Protect the position | Consider asset preservation and whether a stay is needed |
When to take advice
Advice is worth taking on receipt of the award, where the other party may challenge or resist enforcement, where assets are outside Kenya, where the award is unclear or incomplete, or where the deadline is close. The firm’s arbitration and ADR practice advises on challenges and enforcement, and the article on the commercial arbitration process in Kenya explains how the award is produced.
Primary sources
- Arbitration Act, 1995, Kenya Law, for setting aside, recognition and enforcement of awards.
- Kenya Law, for the Act, the rules and the convention framework referred to in this article.
- Judiciary of Kenya, for court structure and procedure.
This article is general information, not legal advice.