Originally from Arbitration Law and Practice in Africa - Second Edition

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I. INTRODUCTION: ARBITRATION IN KENYA HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical Evolution of Law Relating to Arbitration

Various sources trace arbitration law in Kenya to the Arbitration Act of 1968, Cap 49. However, the first Kenyan legislation on arbitration is the East Africa Protectorate Arbitration Ordinance of 1913, which came into force on 1 January 1914. The Ordinance in fact amended the arbitration law by repealing, for use in the East African Protectorate, the Indian Code of Civil Procedure.

The Arbitration Act of Kenya 1995 (“the Act”), which is based on the UNCITRAL Model Arbitration Law of 1985 (“MAL”), repealed the Arbitration Act of 1969, and became operational on 2 January 1996. It was amended in 2010 to incorporate, among other provisions, the immunity of the arbitrator. Notably, the amendment did not incorporate the 2006 amendments of MAL. As at the time of publishing this article, the Act, does not reflect MAL’s latest provisions on interim measures.

The Act embraces the international best practice, as coded in MAL including express distinction between domestic and international arbitration: a liberal definition of what an agreement “in writing” is; party autonomy on choice of arbitration, composition of the tribunal and choice of procedure; the doctrine of kompetenz la kompetenz; immunity of arbitrators; independence and impartiality of arbitrators throughout the arbitral proceedings; non-interference by courts; finality of arbitral awards and the procedures on the recognition and enforcement of awards.