Section 3 of Arbitration Act CAP 49: Interpretation
(1) In this Act, unless the context otherwise requires—
“arbitration” means any arbitration whether or not administered by a permanent arbitral institution;
“arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not;
“arbitral award” means any award of an arbitral tribunal and includes an interim arbitral award;
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
“party” means a party to an arbitration agreement and includes a person claiming through or under a party.
(2) An arbitration is domestic if the arbitration agreement provides expressly or by implication for arbitration in Kenya: and at the time when proceedings are commenced or the arbitration is entered into—
(a) where the arbitration is between individuals, the parties are nationals of Kenya or are habitually resident in Kenya;
(b) where the arbitration is between bodies corporate, the parties are incorporated in Kenya or their central management and control are exercised in Kenya;
(c) where the arbitration is between an individual and a body corporate—
(i) the party who is an individual is a national of Kenya or is habitually resident in Kenya; and
(ii) the party that is a body corporate is incorporated in Kenya or its central management and control are exercised in Kenya; or
(d) the place where a substantial part of the obligations of the commercial relationship is to be performed, or the place with which the subject matter of the dispute is most closely connected, is Kenya.
(3) An arbitration is international if—
(a) the parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states;
(b) one of the following places is situated outside the state in which the parties have their places of business—
(i) the juridical seat of arbitration is determined by or pursuant to the arbitration agreement; or
(ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject-matter of the dispute is most closely connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one state.
(4) For the purpose of subsection (3)—
(a) if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and
(b) if a party does not have a place of business, reference is to be made to his habitual residence.
(5) Where a provision of this Act, except section 29 leaves the parties free to determine a certain issue, such freedom includes the right of the parties to authorize a third party including an institution to make that determination.
(6) Where a provision of this Act refers to the fact that the parties have agreed or that they may agree or in any other way refer to an agreement of the parties, such agreement includes any arbitration rules referred to in that agreement.
(7) Where a provision of this Act, other than sections 26 and 33(2)(a), refers toa claim, it also applies to a counterclaim, and where it refers to a defence it also applies to a defence to such counterclaim.
Enhance Your Research with Bookmarks and Annotations
Here's how you can use these features:
- To bookmark this page, click the "Bookmark this Page" button below the document title.
- To add an annotation, highlight text in the document and select "Add Annotation" from the toolbar that appears.
- These features are great for organizing your research and keeping track of key information.
- You can view and manage your bookmarks and annotations on your Bookmarks and Annotations page.
- Section 4 - Form of arbitration agreement
(1) An arbitration agreement may be in the form of an arbitration clause in acontract or in the form of a separate agreement.
(2) An arbitration agreement shall be in writing.
(3) An arbitration...
- Section 5 - Waiver of right to object
A party who knows that any provision of this Act from which the parties may derogate or any requirement under the arbitration agreement has not been complied with and yet proceeds with the arbitration...
- Section 6 - Stay of legal proceedings
(1) A court before which proceedings are brought in a matter which is thesubject of an arbitration agreement shall, if a party so applies not later than the time when that party enters appearance or...
- Section 7 - Interim measures by court
(1) It is not incompatible with an arbitration agreement for a party to requestfrom the High Court, before or during arbitral proceedings, an interim measure of protection and for the High Court to...
- Section 8 - Death of a party
(1) An arbitration agreement is not discharged by the death of any party thereto,either as respects the deceased or any other party, but in such event is enforceable by or against the personal...
- Section 9 - Receipt of, written communications
(1) Unless otherwise agreed in writing between the parties any communication made pursuant to or for the purposes of an arbitration agreement—
(a) being a communication effected by facsimile or...
- Section 10 - Extent of court intervention
Except as provided in this Act, no court shall intervene in matters governed by this Act.
- Section 11 - Determination of number of arbitrators
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be one.
(3) Where an arbitration agreement provides that the...
- Section 12 - Appointment of arbitrators
(1) No person shall be precluded by reason of that person’s nationality from acting as an arbitrator, unless otherwise agreed by the parties.
(2) The parties are free to agree on a procedure of...
- Section 13 - Grounds for challenge
(1) When a person is approached in connection with his possible appointmentas an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or...
- Section 14 - Challenge procedure
(1) Subject to subsection (3), the parties are free to agree on a procedure for challenging an arbitrator.
(2) Failing an agreement under subsection (1), a party who intends to challenge an...
- Section 15 - Failure or impossibility to act
(1) The mandate of an arbitrator shall terminate if—
(a) he is unable to perform the functions of his office or for any other reason fails to conduct the proceedings properly and with reasonable...
- Section 16 - Termination of mandate and substitution of arbitrator
(1) Where the mandate of an arbitrator is terminated under section 14 or 15, asubstitute arbitrator shall be appointed in accordance with the procedure that was applicable to the appointment of the...
- Section 16A - Withdrawal of arbitrator
(1) Unless otherwise agreed by the parties, an arbitrator who withdraws from his office may, if prior notice has been given to the parties, apply to the High Court—
(a) to grant him relief from any...
- Section 16B - Immunity of arbitrator
(1) An arbitrator shall not be liable for anything done or omitted to be done in good faith in the discharge or purported discharge of his functions as an arbitrator.
(2) Subsection (1) shall extend...
- Section 17 - Competence of arbitral tribunal to rule on its jurisdiction
(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose—
(a) an...
- Section 18 - Power of arbitral tribunal
(1) Unless the parties otherwise agree, an arbitral tribunal may, on the application of a party—
(a) order any party to take such interim measure of protection as the arbitral tribunal may consider...
- Section 19 - Equal treatment of parties
The parties shall be treated with equality and each party shall subject to section 20, be given a fair and reasonable opportunity to present his case.
- Section 19A - General duty of parties
The parties to arbitration shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings.
- Section 20 - Determination of rules of procedure
(1) Subject to the provisions of this Act, the parties are free to agree on the procedure to be followed by the arbitral tribunal in the conduct of the proceedings.
(2) Failing an agreement under...
- Section 21 - Place of arbitration
(1) The parties are free to agree on the juridicial seat of arbitration and the location of any hearing or meeting.
(2) Failing an agreement under subsection (1), the place of arbitration shall be...
- Section 22 - Commencement of arbitral proceedings
Unless the parties otherwise agree, the arbitral proceedings in respect of a particular dispute shall commence on the date on which a request for the dispute to be referred to arbitration is received...
- Section 23 - Language
(1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings.
(2) Failing an agreement under subsection (1), the arbitral tribunal shall determine the...
- Section 24 - Statement of claim and defence
(1) Within the period of time agreed upon by the parties or determined by thearbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy...
- Section 25 - Hearing and written representations
(1) Subject to any agreement to the contrary by the hearing parties, the arbitral tribunal shall decide whether to hold oral hearing for the presentation of evidence or for oral argument, or whether...
- Section 26 - Default of a party
Unless otherwise agreed by the parties, if, without showing sufficient cause—
(a) the claimant fails to communicate his statement of claim in accordance with section 24(1), the arbitral tribunal...
- Section 27 - Experts
(1) Unless otherwise agreed by the parties, the arbitral tribunal may—
(a) appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal; and
(b) require a...
- Section 28 - Court assistance in taking evidence
The arbitral tribunal, or a party with the approval of the arbitral tribunal, may request from the High Court assistance in taking evidence, and the High Court may execute the request within its...
- Section 29 - Rules applicable to substance of dispute
(1) The arbitral tribunal shall decide the dispute in accordance with the rules oflaw chosen by the parties as applicable to the substance of the dispute.
(2) The choice of the law or legal system of...
- Section 30 - Decision making by panel of arbitrators
(1) Unless otherwise agreed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made by a majority of all its...
- Section 31 - Settlement
(1) If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral...
- Section 32 - Form and contents of arbitral award
(1) An arbitral award shall be made in writing and shall be signed by the arbitrator or the arbitrators.
(2) For the purposes of subsection (1), in arbitral proceedings with more than one arbitrator,...
- Section 32A - Effect of award
Except as otherwise agreed by the parties, an arbitral award is final and binding upon the parties to it, and no recourse is available against the award otherwise than in the manner provided by this...
- Section 32B - Costs and expenses
(1) Unless otherwise agreed by the parties, the costs and expenses of an arbitration, being the legal and other expenses of the parties, the fees and expenses of the arbitral tribunal and any other...
- Section 32C - Interest
Unless otherwise agreed by the parties, to the extent that the rules of law applicable to the substance of the dispute permit, an arbitral award may include provision for the payment of simple or...
- Section 33 - Termination of arbitral proceedings
(1) The arbitral proceedings shall be terminated by the final arbitral award orby an order of the arbitral tribunal under subsection (2).
(2) The arbitral tribunal shall issue an order for the...
- Section 34 - Correction and interpretation of arbitral award; additional award
(1) Within 30 days after receipt of the arbitral award, unless a different period of time has been agreed upon by the parties—
(a) a party may, upon notice in writing to the other party, request the...
- Section 35 - Application for setting aside arbitral award
(1) Recourse to the High Court against an arbitral award may be made only by an application for setting aside the award under subsections (2) and (3).
(2) An arbitral award may be set aside by the...
- Section 36 - Recognition and enforcement of awards
(1) A domestic arbitral award, shall be recognized as binding and, upon application in writing to the High Court, shall be enforced subject to this section and section 37.
(2) An international...
- Section 37 - Grounds for refusal of recognition or enforcement
(1) The recognition or enforcement of an arbitral award, irrespective of the state in which it was made, may be refused only—
(a) at the request of the party against whom it is invoked, if that party...
- Section 38 - Bankruptcy
(1) Where it is provided by a term in a contract to which a bankrupt is a party that any differences arising out of or in connection with the contract shall be referred to arbitration, then if the...
- Section 39 - Questions of law arising in domestic arbitration
(1) Where in the case of a domestic arbitration, the parties have agreed that—
(a) an application by any party may be made to a court to determine any question of law arising in the course of the...
- Section 40 - Rules
The Chief Justice may make rules of Court for—
(a) the recognition and enforcement of arbitral awards and all proceedings consequent thereon or incidental thereto;
(b) the filing of applications for...
- Section 41 - Government to be bound
This Act shall bind the Government.
- Section 42 - Repeal of Cap. 49 and saving
(1) The Arbitration Act (Cap. 49) is repealed.
(2) The repeal of the Arbitration Act (Cap. 49) shall not affect any arbitral proceedings commenced before the coming into operation of this...