Enforcing Foreign Arbitral Awards in Kenya: The New York Convention in Practice

Winning an arbitral award against a Kenyan counterparty is only half the job. If the losing party will not pay voluntarily, the award must be converted into an enforceable court order before it can be used to seize assets in Kenya. For foreign awards, that conversion happens under the New York Convention as implemented by Kenya’s Arbitration Act, 1995. This article sets out how in-house counsel actually get a foreign arbitral award recognised and enforced by the Kenyan High Court, what a Kenyan debtor can argue to resist enforcement, and what happens once recognition is granted.

Kenya’s Legal Framework for Foreign Awards

Kenya acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) on 10 February 1989, and the Convention entered into force for Kenya on 11 May 1989, according to the official status record maintained by UNCITRAL. Kenya made the reciprocity reservation permitted under Article I(3) of the Convention, so it applies the Convention only to awards made in the territory of another contracting state. In practice this covers most commercial arbitrations seated abroad, since major arbitral seats such as London, Paris, and Singapore are themselves Convention states.

The Convention is given domestic effect through Part VII of the Arbitration Act, 1995, as amended by the Arbitration (Amendment) Act, 2009. Section 36(2) states that an international arbitration award “shall be recognised as binding and enforced in accordance to the provisions of the New York Convention or any other convention to which Kenya is signatory.” Section 36 sets out what must be filed to enforce an award, and section 37 sets out the limited grounds on which the High Court can refuse. Recognition and enforcement are handled as one application; there is no separate recognition step before enforcement.

Making the Application: Documents and Procedure

Under section 36(3), the party applying to enforce a foreign award must furnish the High Court with the original arbitral award, or a duly certified copy of it, and the original arbitration agreement, or a duly certified copy of it. If either document is not in English, section 36(4) requires a duly certified translation. Before filing, an applicant should assemble the signed award, the arbitration agreement or clause, certified translations where needed, and evidence of the respondent’s assets or presence in Kenya.

The application is made in writing to the High Court, and the Act leaves the detailed mechanics of filing to court rules, so the exact form and any filing fees should be confirmed with Kenyan counsel. Note also that the Arbitration Act does not itself state a limitation period for bringing an enforcement application, so how long a successful claimant has to move should be checked with counsel rather than assumed.

Grounds a Kenyan Debtor Can Raise to Resist Enforcement

Section 37 of the Arbitration Act closely tracks Article V of the New York Convention, and adds one ground of its own. Under section 37(1)(a), the High Court may refuse recognition or enforcement, at the request of the resisting party, only if that party proves one of the following: a party to the arbitration agreement was under some incapacity; the arbitration agreement was not valid under the law the parties chose, or failing that, the law of the state where the award was made; the resisting party did not receive proper notice of the appointment of the arbitrator or of the proceedings, or was otherwise unable to present its case; the award deals with matters outside the scope of the reference to arbitration, though a severable part dealing with matters properly referred can still be enforced; the composition of the tribunal or the arbitral procedure did not comply with the parties’ agreement or the law of the seat; the award is not yet binding, or has been set aside or suspended by a court of the seat; or the award was induced or affected by fraud, bribery, corruption, or undue influence. That last ground goes beyond the text of the Convention and is a Kenya-specific addition.

Separately, under section 37(1)(b), the High Court can refuse enforcement on its own initiative if the subject matter is not capable of settlement by arbitration under Kenyan law, or if enforcement would be contrary to Kenyan public policy. Kenyan courts have generally been reluctant to expand court intervention in arbitration matters. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] KESC 11, the Supreme Court held that section 10 of the Arbitration Act exists “to ensure predictability and certainty of arbitration proceedings by specifically providing instances where a court may intervene,” confining intervention to the narrow categories the Act permits. That case concerned an appeal from a decision setting aside a domestic award, but its posture, reading the courts’ own powers to interfere narrowly, is consistent with how section 37 operates: a closed list of defences, not an invitation to re-argue the merits.

How Long Does Enforcement Take

There is no fixed statutory timetable for a section 36 application. Duration depends on whether the respondent contests enforcement and on the High Court’s caseload: an uncontested application, where the debtor raises no section 37 grounds, moves considerably faster than one where the debtor disputes notice, scope, or public policy. Companies should budget for a contested hearing and, if the debtor loses, a possible appeal, and should ask Kenyan counsel for a realistic estimate based on the current court and the likely level of resistance rather than relying on a generic figure.

After Recognition: Executing Against Assets in Kenya

Once the High Court recognises and enforces a foreign award, it is treated as a decree of the High Court and executed through the same mechanisms used for any other Kenyan court judgment. That means identifying the debtor’s assets in Kenya, such as bank accounts, land, shares, or receivables, and applying for the relevant execution order: attachment and sale of property, garnishee proceedings, or appointment of a receiver. Execution is often the harder half of the job: a recognised award has no value beyond the assets that can actually be found and attached, so asset tracing should start in parallel with the enforcement application, not after it.