Winning an arbitration is only half the task: the award still has to be turned into something a losing party actually pays. Under the Arbitration Act, a party holding a domestic award applies to the High Court to have it recognised and enforced as if it were a decree of the court, after which the ordinary machinery of execution (attachment, sale, garnishee proceedings) becomes available.
Foreign awards are treated no differently in substance, since Kenya is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The party seeking enforcement files the award and the underlying arbitration agreement, and the court's role at that stage is narrow: it is not there to re-open the merits of the dispute.
Grounds to resist enforcement are deliberately limited: incapacity of a party, an invalid arbitration agreement, improper notice or inability to present one's case, an award that strays beyond the scope of what was submitted to arbitration, or enforcement that would be contrary to Kenyan public policy. Because these grounds are narrow and the burden sits with the party resisting enforcement, a well-drafted arbitration agreement and a properly conducted arbitration go a long way toward making enforcement a formality rather than a second fight.
This article is for general information and does not constitute legal advice. For advice on a specific matter, please contact our office.
