Enforcing Arbitral Awards: Recent Judicial Trends
Kenya's courts have recently clarified the limited grounds for challenging arbitral awards, reinforcing the pro-arbitration stance reflected in the Arbitration Act.
By David Kimani
A series of recent Court of Appeal decisions has provided helpful clarity on the scope of judicial review of arbitral awards, particularly regarding public policy challenges and procedural fairness claims.
Limited Scope of Review
The Court of Appeal has consistently held that courts should not review arbitral awards on their merits. Public policy challenges must demonstrate that enforcement would violate fundamental principles of justice or morality, not merely that the tribunal reached an incorrect conclusion on the evidence.
This approach aligns with international best practice and the pro-arbitration policy reflected in Kenya's Arbitration Act, which is based on the UNCITRAL Model Law.
Procedural Fairness Standard
Recent decisions clarify that procedural fairness challenges require demonstration of material prejudice, not mere procedural irregularity. Parties must show that alleged procedural defects affected the outcome or prevented them from presenting their case.
The threshold is high: parties cannot relitigate procedural objections they failed to raise during arbitration, and tribunals have broad discretion in managing proceedings provided parties have reasonable opportunity to present their cases.
Implications for Arbitration Practice
These developments reinforce arbitration's advantages: finality, limited grounds for challenge, and reduced risk of losing parties using court challenges to delay enforcement.
Parties should ensure arbitration agreements are properly drafted, arbitral procedures are clearly documented, and procedural objections are raised promptly during arbitration rather than reserved for post-award challenges.
Analysis based on published decisions as of January 2026. Case-specific advice should be sought for enforcement matters.