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Litigation 2023 - None

Civil Procedure (University of Nairobi)

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CHAMBERS GLOBAL PRACTICE GUIDES

Litigation 2023

Definitive global law guides offering

comparative analysis from top-ranked lawyers

Kenya: Law & Practice

Noella Lubano, Eva Mukami, Radhika Arora and Paul Kamara

Oraro & Company Advocates

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KENYA
Ethiopia

Law and Practice Uganda

Somalia

Contributed by: Kenya

Noella Lubano, Eva Mukami, Radhika Arora and Paul Kamara Nairobi

Oraro & Company Advocates see p.22

Tanzania

Contents
1. General p.4 4. Pre-trial Proceedings p.7
1.1 General Characteristics of the Legal System p.4 4.1 Interim Applications/Motions p.7
1.2 Court System p.4 4.2 Early Judgment Applications p.7
1.3 Court Filings and Proceedings p.4 4.3 Dispositive Motions p.7
1.4 Legal Representation in Court p.4 4.4 Requirements for Interested Parties to Join a
Lawsuit p.8
2. Litigation Funding p.5
4.5 Applications for Security for Defendant’s Costs p.8
2.1 Third-Party Litigation Funding p.5
4.6 Costs of Interim Applications/Motions p.8
2.2 Third-Party Funding: Lawsuits p.5
4.7 Application/Motion Timeframe p.8
2.3 Third-Party Funding for Plainti昀昀 and Defendant p.5
2.4 Minimum and Maximum Amounts of Third- 5. Discovery p.8
Party Funding p.5 5.1 Discovery and Civil Cases p.8
2.5 Types of Costs Considered Under Third-Party 5.2 Discovery and Third Parties p.9
Funding p.5 5.3 Discovery in This Jurisdiction p.9
2.6 Contingency Fees p.5 5.4 Alternatives to Discovery Mechanisms p.9
2.7 Time Limit for Obtaining Third-Party Funding p.5 5.5 Legal Privilege p.9
3. Initiating a Lawsuit p.5 5.6 Rules Disallowing Disclosure of a Document p.9
3.1 Rules on Pre-action Conduct p.5 6. Injunctive Relief p.10
3.2 Statutes of Limitations p.5 6.1 Circumstances of Injunctive Relief p.10
3.3 Jurisdictional Requirements for a Defendant p.5 6.2 Arrangements for Obtaining Urgent Injunctive
3.4 Initial Complaint p.6 Relief p.10
3.5 Rules of Service p.6 6.3 Availability of Injunctive Relief on an Ex Parte
3.6 Failure to Respond p.6 Basis p.10
3.7 Representative or Collective Actions p.7 6.4 Liability for Damages for the Applicant p.10
3.8 Requirements for Cost Estimate p.7 6.5 Respondent’s Worldwide Assets and
Injunctive Relief p.11
6.6 Third Parties and Injunctive Relief p.11
6.7 Consequences of a Respondent’s Non-
compliance p.11

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7. Trials and Hearings p.11 10. Appeal p.16
7.1 Trial Proceedings p.11 10.1 Levels of Appeal or Review to a Litigation p.16
7.2 Case Management Hearings p.11 10.2 Rules Concerning Appeals of Judgments p.16
7.3 Jury Trials in Civil Cases p.12 10.3 Procedure for Taking an Appeal p.16
7.4 Rules That Govern Admission of Evidence p.12 10.4 Issues Considered by the Appeal Court at an
7.5 Expert Testimony p.12 Appeal p.17
7.6 Extent to Which Hearings Are Open to the 10.5 Court-Imposed Conditions on Granting an
Public p.12 Appeal p.17
7.7 Level of Intervention by a Judge p.12 10.6 Powers of the Appellate Court After an Appeal
Hearing p.17
7.8 General Timeframes for Proceedings p.12
11. Costs p.17
8. Settlement p.13
11.1 Responsibility for Paying the Costs of Litigation p.17
8.1 Court Approval p.13
11.2 Factors Considered When Awarding Costs p.18
8.2 Settlement of Lawsuits and Con昀椀dentiality p.13
11.3 Interest Awarded on Costs p.18
8.3 Enforcement of Settlement Agreements p.13
8.4 Setting Aside Settlement Agreements p.13 12. Alternative Dispute Resolution (ADR) p.19
12.1 Views of ADR Within the Country p.19
9. Damages and Judgment p.13
12.2 ADR Within the Legal System p.19
9.1 Awards Available to the Successful Litigant p.13
12.3 ADR Institutions p.19
9.2 Rules Regarding Damages p.14
9.3 Pre- and Post-judgment Interest p.14 13. Arbitration p.20
9.4 Enforcement Mechanisms of a Domestic 13.1 Laws Regarding the Conduct of Arbitration p.20
Judgment p.15 13.2 Subject Matters Not Referred to Arbitration p.20
9.5 Enforcement of a Judgment From a Foreign 13.3 Circumstances to Challenge an Arbitral Award p.21
Country p.15
13.4 Procedure for Enforcing Domestic and Foreign
Arbitration p.21

14. Outlook and COVID-19 p.21

14.1 Proposals for Dispute Resolution Reform p.21
14.2 Impact of COVID-19 p.21

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Oraro & Company Advocates

1. General • the Civil Division;

• the Constitutional and Human Rights Division;
1.1 General Characteristics of the Legal • the Criminal Division;
System • the Family Division; and
In the pre-colonial period, Kenya’s legal system • the Judicial Review Division.
was predominantly customary law, which devel-
oped from customs and practices of people. Subordinate Courts
With the advent of colonialism, the customary Subordinate courts comprise:
legal system was replaced by common law that
was based on legal precedents established by • magistrates’ courts;
courts. Kenya therefore follows an adversarial • Kadhi courts;
model, in which cases are determined on the • courts martial;
basis of pleadings, written submissions or oral • specialised tribunals; and
arguments. • small claims courts.

Generally, judges would allow litigants to pre- 1.3 Court Filings and Proceedings
pare written submissions and make oral argu- Court 昀椀lings are not open to the public unless
ments on the same matter. However, there are one is a party to the proceedings. There are pro-
instances when a judge may determine a dispute cedures to protect the court 昀椀lings from public
by way of written submissions only, especially if disclosure, as a person must demonstrate to the
the dispute is not complex. court registry that they are either a party to the
litigation or have express consent from a litigant
1.2 Court System to access court documents. With the introduc-
All courts in Kenya are national courts and are tion of the e-昀椀ling system portal, individuals can
classi昀椀ed in the following manner. only access the portal with their portal account
credentials.
Superior Courts
Superior courts comprise: Court proceedings are generally open to the
public unless the court 昀椀nds it necessary to
• the Supreme Court; conduct the proceedings in camera to protect:
• the High Court;
• the courts of appeal; and • the privacy of the victim or a child; or
• specialised courts (namely, the Environment • the interests of national security.
and Land Court and the Employment and
Labour Relations Court). 1.4 Legal Representation in Court
Legal representatives must be admitted to the
The High Court is further categorised into vari- bar as an Advocate of the High Court of Kenya
ous divisions, namely: and must take out a valid practising certi昀椀cate
in order to appear in court. Foreign lawyers can
• the Anti-Corruption and Economic Crimes conduct cases in Kenyan courts pursuant to the
Division; power invested in the Attorney General to admit
• the Commercial and Admiralty Division; foreign lawyers to practise in Kenya.

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2. Litigation Funding Failure to serve a demand letter may a昀昀ect costs

only if the defendant admits the case without 昀椀l-
2.1 Third-Party Litigation Funding ing a defence. The defendant, however, does not
The applicable rules do not permit champerty, need to respond to the demand letter.
which is an agreement to divide litigation pro-
ceeds between a litigant and a third party who 3.2 Statutes of Limitations
is 昀椀nancially supporting the litigant. Limitation periods in civil suits in Kenya are gov-
erned by Chapter 22 of the Limitation of Actions
2.2 Third-Party Funding: Lawsuits Act. The limitation periods are triggered by the
See 2.1 Third-Party Litigation Funding. type of claim being asserted and the time that
the cause of action arose. Nonetheless, the
2.3 Third-Party Funding for Plainti昀昀 and court may extend the limitation period in cases
Defendant of disability or fraud, mistake of law, and igno-
See 2.1 Third-Party Litigation Funding. rance of material fact.

2.4 Minimum and Maximum Amounts of The following statutes of limitations apply to civil
Third-Party Funding suits.
See 2.1 Third-Party Litigation Funding.
• Actions founded on contract must be brought
2.5 Types of Costs Considered Under within six years of the date of breach. An
Third-Party Funding action founded on tort must not be brought
See 2.1 Third-Party Litigation Funding. more than three years after the date on which
the cause of action accrued.
2.6 Contingency Fees • An action for the recovery of land may not be
Further to 2.1 Third-Party Litigation Funding, brought by any person after the expiration
contingent fee arrangements are also prohibited of 12 years from the date that the cause of
under Kenyan law (per Rule 78 of the Code of action arose.
Standard of Professional Practice and Ethical • An action to recover a principal sum of money
Conduct 2016). secured by a mortgage on land or mov-
able property or recover the proceeds of the
2.7 Time Limit for Obtaining Third-Party sale of land must be commenced within 12
Funding months of the date that the right to receive
See 2.1 Third-Party Litigation Funding. the money accrued.
• An action by a bene昀椀ciary to recover trust
property or in respect of breach of trust must
3. Initiating a Lawsuit be commenced within six years of the date
on which the trust was breached.
3.1 Rules on Pre-action Conduct
There are no court-imposed rules regarding pre- 3.3 Jurisdictional Requirements for a
action conduct. Nonetheless, a party must serve Defendant
the potential defendant with a demand letter prior For a defendant to be subject to a suit in Ken-
to initiating proceedings against said defendant. ya, the court will 昀椀rst consider whether the suit

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has been 昀椀led in a court in the area where the 3.5 Rules of Service
defendant resides or carries on business. Courts The rules of service in Kenya are governed by
may assert jurisdiction if the suit is 昀椀led where the Civil Procedure Rules. When a suit is 昀椀led,
the cause of action arises. However, if the sub- summons shall be issued to the defendant to
ject matter relates to a property situated in Ken- appear within the time speci昀椀ed. Every sum-
ya, then the suit must be 昀椀led in a court local to mons is prepared by the plainti昀昀 and 昀椀led with
the property. the plaint.

Jurisdiction may di昀昀er between the courts in The summons to enter appearance are signed
terms of pecuniary jurisdiction. Civil matters by the judge and sealed with the seal of the court
concerning amounts in excess of KES20 million within 30 days of 昀椀ling a suit. If the plainti昀昀 acts
should be considered by the High Court, where- in person, the summons shall be served by a
as the following limits apply to matters handled process server appointed by the court. However,
by the subordinate courts: if the plainti昀昀 is represented by an advocate, ser-
vice of the summons will be e昀昀ected through the
• chief magistrate ‒ subject matter does not plainti昀昀’s advocate’s chambers.
exceed KES20 million;
• senior principal magistrate – subject matter A party may be sued outside Kenya. Under Order
does not exceed KES15 million; 5 Rule 21 of the Civil Procedure Rules, service
• principal magistrate ‒ subject matter does not of summons outside Kenya may be allowed
exceed KES10 million; where any person outside Kenya is a necessary
• senior resident magistrate – subject matter or proper party to a suit brought against some
does not exceed KES7 million; and other person duly served in Kenya.
• resident magistrate – subject matter does not
exceed KES5 million. Where leave is given to serve notice of summons
in a foreign country, the notice shall be sealed
3.4 Initial Complaint with the seal of the High Court for use outside
Suits in Kenya are initiated by way of a plaint Kenya and then forwarded by the registrar to the
unless the Civil Procedure Rules 2010 (the “Civ- Foreign A昀昀airs Cabinet Secretary, together with:
il Procedure Rules”) and the applicable laws
instruct a party to commence a suit by other • a copy thereof translated into the language of
documents (eg, originating summons or peti- the country in which service is to be e昀昀ected;
tion). The plaint must be accompanied by a veri- and
fying a昀케davit and evidence in support thereof • with a request for the further transmission of
may be produced through a witness statement. said copy through diplomatic channels to the
government of the country in which leave to
A party may amend its pleadings once before serve the summons has been given.
the pleadings are closed, which is 14 days after
service of the reply or defence to counterclaim. 3.6 Failure to Respond
Where the defendant fails to enter appearance
and respond to the lawsuit, and the plainti昀昀 still
wishes to proceed with said lawsuit, the court

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may enter a judgment in default of appearance 4.2 Early Judgment Applications

against the defendant. The plainti昀昀 is required to There are three primary ways in which a party
昀椀le an a昀케davit of service unless the summons can obtain early judgment in a matter:
were served by the process server appointed
by the court. • judgment in default of appearance (as dis-
cussed in 3.6 Failure to Respond);
3.7 Representative or Collective Actions • summary judgment; and
Representative suits are permitted in Kenya pur- • judgment on admission.
suant to Order 1 Rule 8(1) of the Civil Procedure
Rules, which provides that where numerous per- The summary judgment procedure is available
sons have the same interest in any proceedings for a liquidated demand with or without interest
against the same defendant, the proceedings and where the defendant enters appearance but
may be commenced by or against any one of fails to 昀椀le a defence. An application for sum-
them as representing all of them. mary judgment must be supported by an a昀케da-
vit verifying the cause of action and any amount
One must demonstrate a common interest in claimed.
order to 昀椀le a representative suit. Participation
in representative suits is on an opt-in basis, in Judgment on admission is available at any stage
that any person on whose behalf the representa- of a suit if an admission of facts has been made
tive suit is prosecuted is encouraged to apply to on the pleadings. Upon such admission, a party
court to be made a party. may apply to court for such judgment without
waiting for the determination of other issues.
3.8 Requirements for Cost Estimate
There is no mandatory requirement in Kenya to It is also possible to 昀椀le an application for the
provide clients with a cost estimate of the poten- other party’s case to be struck out before trial or
tial litigation. However, as regards legal fees, substantive hearing of the claim. This application
Chapter 16 of the Advocate’s Act sets the mini- must be supported by an a昀케davit setting out the
mum fee chargeable to a client and allows the facts in support of the application to strike out.
advocate and the client to agree on the amount However, where a party seeks to rely on pure
of the advocate’s instruction fee or their fees for points of law (eg, limitation of action and juris-
appearing in court (or both). dictional issues) then such a motion may also be
made by way of a preliminary objection.

4. Pre-trial Proceedings 4.3 Dispositive Motions

The defendant/respondent can have a claim dis-
4.1 Interim Applications/Motions posed of before trial by claiming:
Courts in Kenya have a wide range of powers to
make interim orders upon an appropriate appli- • the court does not have jurisdiction to hear
cation being 昀椀led, including injunctive relief, the claim;
conservatory orders, an order for accounts, and • an abuse of the process of the court;
witness summons. These orders need not be
limited to case management issues.

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• lack of any cause of action against the 4.6 Costs of Interim Applications/
defendant and/or no relief has been sought Motions
against the defendant; and Generally “costs follow the event”, with the result
• the claim is premature, as a result of failing that a successful party will be awarded the costs
to comply with certain pre-conditions (eg, of prosecuting or defending the interim applica-
submitting the claim to a specialised tribunal tion. This is a discretionary power, however, and
before proceeding to court). there are instances where judges may choose
to subsume any decision on costs into their 昀椀nal
4.4 Requirements for Interested Parties judgment.
to Join a Lawsuit
Parties not named as a plainti昀昀 or defendant 4.7 Application/Motion Timeframe
may be joined in a lawsuit as interested parties There are no pre-de昀椀ned timelines for a court to
by the plainti昀昀/claimant at the time of drawing deal with an application. This is ordinarily deter-
their claim or, subsequently, through a formal mined by:
application that must be supported by an a昀케-
davit. • the complexity of the application;
• the number of pending applications at the
In the case of Trusted Society of Human Rights time the application in question is 昀椀led;
Alliance v Mumo Matemu & 5 Others, Supreme • the number of parties responding to the appli-
Court Petition (Application) No 12 of 2013, the cation; and
Supreme Court set out the following applicable • whether an oral hearing is needed to dis-
principles when determining an application to be pense with the application.
joined as an interested party.
Parties can ask the court for an application to
• The party must have a personal interest in the be dealt with on an urgent basis by 昀椀ling a Cer-
matter and this must be clearly identi昀椀able. ti昀椀cate of Urgency.
• The prejudice to be su昀昀ered by the intended
interested party in case of non-joinder.
• The applicant must set out the case it intends 5. Discovery
to make before the court, and the relevance
thereof. 5.1 Discovery and Civil Cases
Discovery is available in Kenya. Under Section
4.5 Applications for Security for 22 of the Civil Procedure Act 2010 (the “Civil
Defendant’s Costs Procedure Act”), the court may – of its own
Under Order 26 Rule 1 of the Civil Procedure accord or upon the application of a party – make
Rules, a defendant may apply for the costs they an order relating to:
expect to incur in defending the claim and the
court has discretionary power to order or refuse • the delivery and answering of interrogatories;
security for said costs. • the admission of documents and facts;
• the discovery, inspection and production of
documents; or

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• other material objects producible as evi- the view that all relevant documents must be
dence. disclosed ‒ irrespective of whether or not they
are con昀椀dential ‒ unless the defence of privilege
The court may also issue summonses requiring applies.
the attendance of a particular person to either
give evidence or produce documents. 5.4 Alternatives to Discovery
Mechanisms
The documents sought to be discovered must As outlined in 5.1 Discovery and Civil Cases,
be shown to be relevant. Relevance is deter- the Kenyan legal system provides for discovery
mined based on the pleading, so as to avoid mechanisms.
discovery being used as a 昀椀shing expedition.
5.5 Legal Privilege
The discovery process may be administered by Legal privilege is recognised in Kenya under Sec-
either the litigant or the judge, as necessary. tion 134 of Chapter 80 of the Evidence Act. pre-
cludes any advocate from disclosing any com-
5.2 Discovery and Third Parties munication made to them, stating the contents
A party may obtain discovery from a third party or condition of any document to which they have
not named as a plainti昀昀, defendant or witness. been exposed, or disclosing any advice given
Courts have wide discretion to subpoena the by the advocate to the client during the course
attendance of a third party to appear in court of their employment ‒ unless the advocate has
with a view to elucidate the truth. obtained express consent from the client.

A party seeking the attendance of such a third Legal privilege is not absolute, however, as it
party is required make an application to court does not apply to communication made in fur-
seeking to summons the third party. The appli- therance of any illegal purpose or where the
cant must pay enough money into court to cover advocate has o昀昀ered himself as a witness.
the expenses of the third party. The court may
then issue summons specifying the time and There is no distinction between external and in-
place that the third party is required to attend house counsel as far as legal privilege is con-
and whether such attendance is for giving evi- cerned. Legal privilege belongs to the client
dence or producing documents. The summons and must be protected, provided the counsel is
shall then be served upon the third party within quali昀椀ed as an advocate.
a su昀케cient period of time (as speci昀椀ed in the
summons). 5.6 Rules Disallowing Disclosure of a
Document
5.3 Discovery in This Jurisdiction Apart from legal privilege, a party may be
A party to a suit must disclose and produce all excused from disclosing a document on account
the documents they intend to rely on, as per of other forms of privileges (eg, privilege of court
the manner in which the pleadings have been for judges or magistrates, marital communi-
particularised. Although there is no set list or cations privilege, privilege relating to o昀케cial
express provision of the documents that parties records and o昀케cial communications). A party
must disclose, courts have generally adopted may also object to disclosure if the document is

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con昀椀dential and disclosure of such would lead ing the 昀椀nal determination of the case (eg, a
to violation of a third party’s right to privacy and freezing order); and
con昀椀dentiality. • quia timet injunctions, which are precaution-
ary measures and acts intended to prevent a
The court will not order a party to disclose a harm or wrong that is anticipated.
document if said document is not in their pos-
session and the party cannot produce it. Addi- 6.2 Arrangements for Obtaining Urgent
tionally, and as already set out in 5.1 Discovery Injunctive Relief
and Civil Cases, the court will not allow an appli- Injunctive relief can be obtained quickly by 昀椀l-
cation for disclosure if the document sought to ing the application for injunctive relief under a
be disclosed is irrelevant. Certi昀椀cate of Urgency. The various courts have
an assigned duty judge who deals with the day’s
certi昀椀cates (provided they are 昀椀led before noon).
6. Injunctive Relief Where merited, the duty judge will certify an
application as urgent and dispense with direc-
6.1 Circumstances of Injunctive Relief tions on the hearing and determination of the
Under the Kenyan legal system, there are two underlying claim. Directions for such certi昀椀cates
di昀昀erent types of injunctions: are accessible 24 hours a day via the Kenyan
Judiciary’s e-昀椀ling portal.
• positive injunctions, which direct a party to do
something; and 6.3 Availability of Injunctive Relief on an
• negative injunctions, which restrain a party Ex Parte Basis
from doing something. Injunctive relief can be obtained on an ex parte
basis and will ordinarily subsist pending the
A positive injunction is a mandatory injunction hearing and determination of the underlying
(restorative injunction). It requires the party to application. However, in ex parte proceedings,
whom it is directed to undo a certain act and the applicant is required to make full and frank
restore the situation and the parties involved disclosure to the court of all known facts and
status quo ante. information.

There are numerous negative injunctions, includ- 6.4 Liability for Damages for the
ing: Applicant
Upon an appropriate application being made
• prohibitory injunctions, which requires a party by the respondent, an applicant applying for
to refrain from doing a speci昀椀ed act; injunctive relief may be required to provide the
• perpetual injunctions, which are ordered at respondent with security for damages that may
the time of the 昀椀nal judgment, granted within be su昀昀ered by the respondent if:
the judgment that ultimately disposes of the
underlying suit, and therefore must always be • the respondent eventually discharges the
in the form of a 昀椀nal relief; injunction; or
• interlocutory injunctions, which compel or
prevent a party from doing certain acts pend-

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• the court 昀椀nds that the ex parte injunctive 7. Trials and Hearings
relief granted to the applicant was not mer-
ited. 7.1 Trial Proceedings
Depending on the nature and complexity of the
By the same token, a respondent who su昀昀ers matter, judges have discretion to decide the
damages owing to the subsistence of an injunc- procedure for trial. However, most judges are
tion that is eventually discharged is entitled to receptive to a hybrid system that encompasses
seek damages. consideration of oral arguments, examination of
witnesses/experts at hearing/trial, and prepa-
6.5 Respondent’s Worldwide Assets and ration of written arguments. Nonetheless, it is
Injunctive Relief common for judges to prefer to conduct the
Kenyan courts will grant injunctive relief against hearing of interlocutory applications entirely by
assets of the respondent that are within Kenyan written documents.
jurisdiction in order to prevent the respondent
from dealing with such assets pending the hear- 7.2 Case Management Hearings
ing and determination of either the application As mentioned in 7.1 Trial Proceedings, judges
for injunctive relief or the underlying claim. It prefer to conduct the hearing of urgent interim
is doubtful, however, that Kenyan courts have motions or applications by way of written docu-
the jurisdiction to grant injunctive relief over any ments but in some limited cases allow parties to
assets of the respondent that are situated in make oral arguments if necessary.
other countries.
Any suit 昀椀led in Kenyan courts must undergo a
6.6 Third Parties and Injunctive Relief case management conference with a view to:
Although Kenyan courts are generally reluctant
to grant injunctive relief against third parties, • promoting expeditious disposal of cases;
such relief can be obtained if: • a昀昀ording the parties an opportunity to settle
the case; and
• said third parties hold assets on behalf of the • dealing with pre-trial applications at 昀椀rst
respondent against whom the freezing order instance or formulating a timetable to deal
is directed; or with them as the court may deem 昀椀t.
• it would be necessary to ensure that the
respondent does not dissipate assets through Prior to the hearing of the suit and 14 days after
the conduit of third parties. the close of pleadings, the plainti昀昀 must com-
plete a case management checklist detailing –
6.7 Consequences of a Respondent’s inter alia – all the pleadings that have been 昀椀led
Non-compliance and the date on which each of the pleadings was
A party who fails to comply with the terms of an 昀椀led. The plainti昀昀 is thereafter required to serve
injunction is deemed to be in contempt of court the checklist upon the other party within 14 days
and, upon an application being made, the court of the 昀椀ling it and invite said party to meet at the
in question may impose appropriate sanctions registry to prepare the matter for case manage-
(including a 昀椀ne and jail time). ment conference.

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Any party intending to ask for an order at the pute that by their nature require specialised or
case management conference (for instance, scienti昀椀c knowledge, as long as it is provided by
request to amend pleadings, request for particu- someone specially skilled in the relevant 昀椀eld of
lars and request for interrogatories) or request science or art.
that the matter be referred to ADR is required to
serve the other party with said request no later This is no rule restricting courts from seek-
than seven days before the scheduled case ing expert testimony. This, however, does not
management conference. necessarily mean that the expert testimony will
trump all other evidence and bind the court.
At the case management conference, the judge
shall complete a case management checklist 7.6 Extent to Which Hearings Are Open
and the parties will sign the completed case to the Public
management checklist, which will be certi昀椀ed Please refer to 1.3 Court Filings and Proceed-
by the judge or deputy registrar. Thereafter, ings. Evidence of witnesses is taken down in
the judge or deputy registrar may give orders writing by the judge or electronically recorded
(including allocating time within which the orders and, when completed, signed by the judge. The
are to be complied with) and 昀椀x a date on which transcript thereof is then made available to the
the parties must appear before court to con昀椀rm parties to the suit upon request, normally by way
compliance. of a letter addressed to the deputy registrar.

If the parties are able to resolve the suit through 7.7 Level of Intervention by a Judge
ADR, the judge shall adopt the resolution of the During the course of a hearing, a judge may
parties as an order of the court. However, should intervene to seek clari昀椀cation or ensure fair hear-
the parties fail to settle the matter, the judge may ing rules are upheld. It is common in Kenya for a
proceed to prepare the matter for hearing. judge to give a ruling at the hearing, especially
following an oral application by a party. However,
7.3 Jury Trials in Civil Cases care must be taken to ensure that the ruling does
Jury trials are not available in Kenya. Please see not dispense with the merits of the main suit,
1.1 General Characteristics of the Legal Sys- which is reserved for trial and a judgment deliv-
tem. ered at a later date.

7.4 Rules That Govern Admission of 7.8 General Timeframes for Proceedings
Evidence It is di昀케cult to determine the applicable time-
Chapter 80 of the Evidence Act provides that frame as several factors may in昀氀uence the
all evidence is relevant, as long as it proves the timelines, including the court’s diary, the avail-
existence or non-existence of a fact at issue, and ability of the judge, and adjournment by par-
can thus be produced at trial. ties for various reasons. Nonetheless, where a
party has 昀椀led a plaint, the plainti昀昀 is required to
7.5 Expert Testimony serve a copy of the plaint to all the defendants
Expert testimony is permitted at trial and parties within 12 months, following which the defendant
may introduce expert testimony that is needed is required to enter appearance within 14 days
in order to evaluate those aspects of the dis-

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of service and 昀椀le their defence or counterclaim be kept con昀椀dential by executing them outside
within 14 days after entering appearance. the court and thereafter withdrawing the case.

Thereafter, the plainti昀昀 will then respond to 8.3 Enforcement of Settlement

the counterclaim or defence within 14 days of Agreements
service after which pleadings will be deemed As stated in 8.1 Court Approval and 8.2 Set-
closed. Following the close of pleadings, par- tlement of Lawsuits and Con昀椀dentiality, most
ties are then required to complete and 昀椀le a pre- settlements are e昀昀ected through either record-
trial questionnaire within 10 days and convene ing a consent judgment as an order of the court
a case conference within 30 days. The court or through the execution of a settlement agree-
will then issue a hearing date dependent on the ment. In such circumstances, the terms of the
court’s diary and availability of parties. However, settlement will be binding and any breach there-
once the trial has been concluded, the court will of will amount to a breach of contract, thereby
proceed to deliver its judgment within 60 days. enabling the counterparty to bring an action for
breach of contract.
Nonetheless, the Civil Procedure Rules imply
that it is possible for the court to resolve a mat- 8.4 Setting Aside Settlement Agreements
ter within a given timeframe. The Rules provide It is settled law that a consent judgment or order
that matters that can be concluded within 180 has contractual e昀昀ect and can only be set side
days of the pre-trial directions are categorised as on grounds that would justify setting a contract
fast track. On the other hand, matters that may aside or if certain conditions remain unful昀椀lled.
be concluded within 240 days of the date of the
pre-trial directions are classi昀椀ed as multi-track.
9. Damages and Judgment

8. Settlement 9.1 Awards Available to the Successful

Litigant
8.1 Court Approval Depending on the nature of the claim and the
Parties to a lawsuit are at liberty to settle the suit prayers sought, various remedies may be
in the manner they deem 昀椀t and need not seek awarded to a successful litigant. In constitutional
court approval prior to settling a matter. claim, for instance, a successful litigant may be
awarded:
8.2 Settlement of Lawsuits and
Con昀椀dentiality • a declaration of rights;
Settlement agreements can remain con昀椀den- • an injunction;
tial, depending on the matter in which parties • a conservatory order;
choose to settle the suit. If parties opt to record a • a declaration of invalidity of any law;
consent judgment as an order of the court, then • compensation; and
it is likely that the agreement will form part of • an order of judicial review.
the court record and thus a publicly accessible
document. However, settlement agreements can

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In a contractual claim, a successful litigant may damages, they must be speci昀椀cally pleaded and
be awarded speci昀椀c damages, speci昀椀c perfor- proved before they can be awarded.
mance, rescission and restitution.
Punitive damages will only be awarded in excep-
In a judicial review claim, a successful litigant tional circumstances. In a claim challenging the
may be awarded: action/conduct of the government, for example,
the court will only award punitive damages if it
• an order directing the authority to take a is demonstrated that:
given decision;
• an order declaring the rights of the parties in • the conduct/action complained of is oppres-
relation to the taking of the decision; sive, arbitrary or unconstitutional; or
• an order restraining the authority from act- • the defendant calculated that its conduct
ing or continuing to act in breach of duty or action would result in a pro昀椀t that may
imposed upon it; exceed the compensation payable to the suc-
• an order directing the authority to give rea- cessful claimant.
sons for its action or decision;
• an order prohibiting the authority from acting 9.3 Pre- and Post-judgment Interest
in a particular manner; It is possible for a party to be awarded pre-judg-
• an order setting aside the decision or action ment interest in Kenya. Courts have observed
of the authority and remitting the matter for that the parameters of awarding pre-judgment
reconsideration by the authority; interest are twofold, namely:
• an order granting a temporary interdict or
other temporary relief; or • the plainti昀昀 should be compensated for being
• an order awarding costs or other monetary deprived of their money from the time they
compensation in appropriate cases. incurred their loss; and
• the defendant wrongly withheld the plainti昀昀’s
9.2 Rules Regarding Damages money, therefore interest should run from the
The assessment of general damages is at the date the defendant ought reasonably to have
discretion of the judge. However, the judge will settled the claim.
be guided by previous precedents in deciding
the quantum of general damages to be awarded. Nonetheless, the court will generally award inter-
An appellate court will refrain from disturbing est on special damages for the period from the
the quantum of general damages awarded by time of 昀椀ling the suit to the date of the decree
the trial judge unless it is demonstrated by the (as per Section 26 of the Civil Procedure Act).
appellant that the trial judge took irrelevant fac-
tors into account when assessing the damage A party may collect interest after the judgment
or that the amount assessed is inordinately low. has been entered. Quite apart from special dam-
ages, interest on general damages and punitive
General damages cannot be awarded for beach damages is ordinarily assessed from the date
of contract. Breach of a contractual duty would of the judgment as that is the date when the
lead to compensation for speci昀椀c loss su昀昀ered defendant’s liability to pay damages begins.
and not general damages. As regards speci昀椀c

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(See Shari昀昀 Salim & Another vs Malundu Kikava designated court as a superior court of a recipro-
(1989) eKLR). cating country that is either is a commonwealth
country or a country declared by the Foreign
The authors are not aware of any statutory limits A昀昀airs Cabinet Secretary as such.
to the award of pre- and post-judgment interest,
apart from the express terms of Section 26 of the A party intending to enforce a foreign judgment
Civil Procedure Act and the various cases dis- is required to apply to the High Court, within
cussed earlier. Section 26 provides that the court six years of said judgment, to have the foreign
must set the interest at such a rate as it deems judgment registered. The application must be
reasonable on the aggregate sum and, should accompanied by:
the decree be silent on the applicable interest,
then the court is deemed to have ordered inter- • a certi昀椀cate issued from the foreign court
est at 6% per annum. under its seal and signed by the judge or
registrar;
9.4 Enforcement Mechanisms of a • a certi昀椀ed or duly authenticated copy of the
Domestic Judgment foreign judgment, which ‒ if not in English ‒
A successful party ‒ normally referred to as the must be certi昀椀ed by a notary public on the
decree holder – may pursue various mecha- registrar of the foreign court; and
nisms to enjoy the bene昀椀ts of a domestic judg- • an a昀케davit stating, inter alia, that the judg-
ment, such as applying for: ment:
(a) has not been satis昀椀ed;
• delivery of any property; (b) can be enforced by execution in the for-
• attachment and sale; eign country; and
• sale without attachment; (c) can be registered in its entirety or in
• garnishee order; respect of certain parts of its provisions.
• arrest and detention; or
• appointment of a receiver. If the application was made ex parte, the court
may instruct a summons to be issued or, in the
9.5 Enforcement of a Judgment From a absence of such direction, notice of the registra-
Foreign Country tion of the judgment on the application will be
The law and the procedure relating to the served to the other party. If the court is satis昀椀ed
enforcement of foreign judgments is provided with the evidence produced, it may order that the
for in the Foreign Judgment (Reciprocal Enforce- judgment be registered – with the e昀昀ect that the
ment) Act. The Act provides for the enforcement registered judgment shall have the same force
in Kenya of judgments delivered in countries that and e昀昀ect as the judgment of the High Court
accord reciprocal treatment to judgments deliv- entered at the date of registration.
ered in Kenya.

For a foreign judgment to be enforced in Kenya

under the Act, said judgment must have been
made by a designated court and must be a judg-
ment to which the Act applies. The Act de昀椀nes a

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10. Appeal of right, and this includes inter alia amendment

of pleadings, setting aside judgments in default
10.1 Levels of Appeal or Review to a of appearance, security for costs, enlargement
Litigation of time, and judicial review orders.
The various levels of appeal are determined by
the hierarchy of Kenyan courts and tribunals as Not all judgments of the Court of Appeal are
follows: appealable to the Supreme Court. An appeal
shall only lie as a matter of right to the Supreme
• the decisions of specialised tribunals, as well Court where it is brought pursuant to Article
as the Chief Magistrate’s Court, are appeal- 163(4)(a) of the Kenyan Constitution and it deals
able to the High Court; with the interpretation or application of the Con-
• the decisions of the High Court are appeal- stitution. However, in any other case, a matter
able to the Court of Appeal; is only appealable to the Supreme Court where
• the decisions of the Court of Appeal, if touch- either the Court of Appeal or the Supreme Court
ing on a fundamental constitutional right, are certi昀椀es that the matter is one of general pub-
appealable to the Supreme Court; and lic importance, the determination of which will
• the decisions of the Supreme Court are a昀昀ect and transcend the parties to the dispute.
appealable to the East African Court of
Appeal. Finally, it is also important to note that parties
opting to review a decision cannot also exercise
Most courts have the power to review their own their right of appeal from the same decision.
judgments and rulings. However, the scope of
review is limited to: 10.3 Procedure for Taking an Appeal
Where a party requires leave to lodge an appeal
• the discovery of new and important evidence against a ruling or judgment, such applica-
that was not within the knowledge of the tion may be made orally before the court that
applicant at the time when the order was delivered the decision. Where the counterparty
made; opposes the application, the court will ordinar-
• mistake or error apparent from the record; ily direct the applicant to lodge a formal written
• need for clari昀椀cation; and application, which can then be responded to and
• any other su昀케cient reason analogous to the dispensed with by way of written submissions.
above-mentioned points.
Where no leave to appeal is required, however, a
10.2 Rules Concerning Appeals of party aggrieved with a decision of a lower court
Judgments ordinarily has 14 days from the date of the deci-
Parties do not require leave to lodge an appeal sion to 昀椀le a notice of appeal and 60 days from
from the High Court to the Court of Appeal from the date of the decision to lodge its appeal. If
a 昀椀nal judgment or decree, with such leave pri- a party is unable to lodge its appeal within 60
marily being necessary where parties wish to days, it may apply for an extension of time.
lodge an appeal against an interim ruling. Order
43, Rule 1 of the Civil Procedure Rules lists the
interim orders from which an appeal shall lie as

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10.4 Issues Considered by the Appeal costs by the appealing party or, in some cases,
Court at an Appeal even security for the claimed sum.
An appeal to the Court of Appeal from the tri-
al court is by way of retrial and the principles 10.6 Powers of the Appellate Court After
upon which the Court of Appeal acts in such an Appeal Hearing
an appeal are well settled. The appellate court Pursuant to Section 78(1) of the Civil Procedure
must reconsider the evidence and draw its own Act, and subject to such conditions and limita-
conclusions, although it may give itself leeway tions as may be prescribed by any other statute,
owing to the fact that it has neither seen nor an appellate court shall have the power to:
heard the witnesses and should make due allow-
ance in this regard. • determine a case 昀椀nally;
• remand a case back to the lower court;
Further, Kneller & Hancox Ag JJA stated in the • frame issues and refer them back to the lower
Court of Appeal in Mkube v Nyamuro (1983) court for trial;
KLR, 403‒415 that a court sitting on appeal will • take additional evidence, or require additional
not normally interfere with the 昀椀nding of fact by evidence to be taken by the lower court; and/
a trial court unless it is based on no evidence or
(or on a misapprehension of the evidence) or the • order a new trial.
judge is shown demonstrably to have acted on
wrong principles in reaching their conclusion. In most cases, the appellate court has the same
powers and performs nearly the same duties as
The appellate court does not generally allow the those conferred and imposed on courts of origi-
production of new evidence at appeal stage, nal jurisdiction when it comes to suits instituted
although it has allowed the admission of new before said courts (as per Section 78(2) of the
evidence that was not before the superior courts Civil Procedure Act).
over the years. For this discretion to be exer-
cised, however, there must be su昀케cient reason
established for receipt of such further evidence 11. Costs
and it must be especially shown that the new
evidence: 11.1 Responsibility for Paying the Costs
of Litigation
• could not have been obtained with reason- Payment of 昀椀ling fees is a prerequisite to the
able diligence for use at the trial; and commencement of an action, with the onus being
• was of such weight that it was likely to ulti- on the plainti昀昀. However, each party is respon-
mately a昀昀ect the court’s decision. sible for paying their attorney’s fees, which may
be exclusive or inclusive of VAT and expenses/
10.5 Court-Imposed Conditions on disbursement, depending on the agreement
Granting an Appeal entered into between the client and the attorney.
Subject to an application being made by either
party, the court being appealed to may direct The general rule is that costs ought to follow the
that the appeal be subject to certain conditions event, unless there are reasons to justify court’s
‒ for example, payment into court of security for departure (eg, public interest litigation). Although

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the award of costs is at the discretion of courts, ed at the appeal that the discretion was exer-
courts will generally award costs to the success- cised injudiciously or based on wrong principles.
ful party – with the e昀昀ect that the losing party
shall pay the cost of litigation. Finally, where the parties are not aggrieved with
the award of costs but rather the quantum pay-
A successful party, if awarded costs of the able as drawn by the successful party in the bill
suit, shall be compensated for all the expenses of costs, the aggrieved party may challenge the
incurred while litigating the suit, including the bill of costs by preparing and 昀椀ling written sub-
instruction fees for their attorney, top-up fees, missions before the taxing o昀케cer who shall hear
court attendances, disbursements and court and decide the matter.
昀椀ling fees. Generally, the successful party will
have to draw a bill of costs, which is a docu- 11.2 Factors Considered When Awarding
ment containing an itemised list of the costs Costs
incurred by the successful party during litiga- In exercising the discretion to award costs,
tion. The bill must be drawn in accordance with courts will generally consider the following fac-
the Advocates Remuneration Order 2014, which tors:
prescribes the amount to be charged in both
contentious and non-contentious matters. • the conduct of the parties;
• the subject of litigation;
Various mechanisms exist for a party to chal- • the circumstances which led to the institution
lenge the amount of cost to be drawn. If an of the proceedings;
aggrieved party is dissatis昀椀ed with the award of • the events that eventually led to their termina-
costs by the court, they may apply for a review tion;
of the judgment by the court that awarded costs. • the stage at which the proceedings were
Notably, the scope of review is limited to the fol- terminated;
lowing grounds: • the manner in which they were terminated;
and
• discovery of new evidence, which ‒ despite • the relationship between the parties.
exercise of due diligence ‒ was not within the
knowledge of the applicant; 11.3 Interest Awarded on Costs
• mistake or error apparent from the record; or Pursuant to Section 27(2) of the Civil Procedure
• for any other su昀케cient reasons. Act, courts have the power to award interest on
costs. The proviso states that interest on costs
Whatever the grounds, there is a requirement is awarded at any rate but must not exceed 14%
that the application is made without unreason- per annum and must be calculated on a simple
able delay. interest and not on compounded basis.

An aggrieved party may also appeal the award Although courts have wide discretion to award
of costs by the trial court to the superior courts. interest on costs, it is not a rule of thumb that a
However, as the award of costs is a matter of successful party who has been awarded costs
discretion, the superior courts will be hesitant to must also be awarded interest on those costs.
interfere with the award unless it is demonstrat- However, where interest on costs is awarded,

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the successful party will be entitled to such from Therefore, the said proviso does not make it
the date of the judgment or order. mandatory for the court to refer parties to ADR.
It is only under Order 46 of the Civil Procedure
Rules that the court can by suo moto or on the
12. Alternative Dispute Resolution application of parties to refer the matter to ADR.
(ADR) In all other instances, the parties must consent
to such referral.
12.1 Views of ADR Within the Country
In Kenya, ADR mechanisms are recognised and The only remedy available for parties when a
encouraged through Article 159(2)(c) of the Con- court has unreasonably refused to refer their
stitution of Kenya 2010. matter to ADR is to appeal against such a deci-
sion.
The most popular ADR methods in Kenya are
mediation and arbitration, the use of which is 12.3 ADR Institutions
highly encouraged in order to maintain existing The institutions o昀昀ering and promoting ADR in
commercial relationships between the parties Kenya are well organised.
(among other things).
One of the institutions is the Chartered Institute
Arbitral proceedings are governed by the Arbi- of Arbitrators, which is a leading professional
tration Act No 4 1995 (the “Arbitration Act”), membership organisation representing the
although there is no Act of Parliament regulat- interests of ADR practitioners’ worldwide. The
ing mediation. Generally, however, mediation is Kenyan chapter of the institution is headed by a
regulated by rules created by institutions, such chairperson. It also has the committee and the
as: secretariat to assist in dispensing its functions.
The institution has di昀昀erent levels of member-
• the Nairobi Centre for International Arbitration ship (ie, student, associate, member, fellow and
(Mediation) Rules 2015, which govern media- chartered arbitrator).
tions conducted in that institution; and
• the Mediation (Pilot Project) Rules 2015, The other institution is the Nairobi Centre for
which govern court-annexed mediation. International Arbitration, which was established
by the Nairobi Centre for International Arbitra-
12.2 ADR Within the Legal System tion Act No 26 2013 (the “NCIA Act”) mainly to
The Kenyan legal system, to a large extent, pro- promote international commercial arbitration. It
motes ADR. As mentioned at 12.1 Views of ADR is administered by a board of directors and a
Within the Country, Article 19(2)(c) of the Ken- management secretariat.
yan Constitution recognises ADR mechanisms
as one of the principles guiding the exercise of The next institution is the Strathmore Dispute
judicial authority by courts and tribunals. Resolution Centre, which was established in
2012 with the aim of promoting mediation as an
However, the referral of disputes to ADR mecha- e昀케cient, sustainable and cost-e昀昀ective dispute
nisms must be with the consent of the parties, resolution mechanism in Kenya and East Africa.
owing to the consensual nature of the methods.

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13. Arbitration • a party to the arbitration agreement was inca-

pacitated in some way;
13.1 Laws Regarding the Conduct of • the arbitration agreement is not valid under
Arbitration the law to which the parties have subjected it
Arbitration in Kenya is regulated under Article or under the law of the state in which the arbi-
159(2)(c) of the Constitution of Kenya 2010 and tral award was made;
the Arbitration Act, the Arbitration Rules and the • the party against whom the award was
NCIA Act. invoked was not noti昀椀ed of the appointment
of an arbitrator of the arbitral proceedings;
The substantive law on arbitration in Kenya is • the arbitral award concerns disputes not
the Arbitration Act, which governs both domes- contemplated by the arbitration agreement
tic and international arbitration, as well as pro- or contains decisions on matters beyond the
viding for: scope of reference to arbitration;
• the arbitral tribunal was not composed in
• the extent of court involvement in arbitration; accordance with the agreement of the parties
• the setting aside of arbitral awards; and or the law of the state where the arbitration
• the recognition and enforcement of arbitral took place;
awards. • the award has not yet become binding;
• the award has been set aside;
The NCIA Act, on the other hand, simply estab- • the award has been suspended by a court of
lished the Nairobi Centre for International Arbi- the state in which or under the law of which it
tration and an Arbitral Court ‒ the bodies of was made;
which only have jurisdiction with regard to dis- • the award was induced or a昀昀ected by fraud,
putes referred to them by the parties involved in bribery, corruption or undue in昀氀uence;
said dispute. • the subject matter of the dispute is not capa-
ble of settlement by arbitration under the law
Section 36 of the Arbitration Act provides that a of Kenya; or
domestic arbitral award shall be recognised as • the recognition or enforcement of the award
binding upon application in writing to the High would be against public policy in Kenya.
Court and notice thereof must be given to the
losing party. The Act further provides that an 13.2 Subject Matters Not Referred to
international arbitral award shall be recognised Arbitration
as binding and enforceable in accordance with There is no exhaustive list of matters that are
the provisions of the Convention on the Recogni- not arbitrable in Kenya. However, Kenyan courts
tion and Enforcement of Foreign Arbitral Awards have considered some matters to be matters
1958 (the “New York Convention”). Essentially, that may not be referred to arbitration – for
for an international arbitral award to be recog- example, the rights and liabilities arising from
nised, it must be awarded in a signatory state to criminal o昀昀ences and insolvency and winding-
the New York Convention. up proceedings.

Courts in Kenya will neither recognise nor

enforce an arbitral award if it is proved that:

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13.3 Circumstances to Challenge an 14. Outlook and COVID-19

Arbitral Award
In the event that a party is dissatis昀椀ed with the 14.1 Proposals for Dispute Resolution
arbitral award, said party may apply to set it Reform
aside on any of the grounds set out under Sec- There are currently no proposed reforms in rela-
tion 35 of the Arbitration Act (and as detailed in tion to dispute resolution.
13.1 Laws Regarding the Conduct of Arbitra-
tion). 14.2 Impact of COVID-19
The impact of the COVID-19 pandemic led the
13.4 Procedure for Enforcing Domestic Judiciary of Kenya to embrace technology as a
and Foreign Arbitration means of dispensing justice. The authors wit-
A party wishing to enforce a domestic award is nessed court activities being handled electroni-
required to apply to the High Court by way of cally, ranging from e-昀椀ling and videoconference
chambers summons. The application shall be hearings to the delivery of judgments via vide-
accompanied by an original arbitral award (or a oconferencing. However, no legislation has been
duly certi昀椀ed copy thereof) and the original arbi- passed nor orders issued suspending the opera-
tration agreement (or a duly certi昀椀ed copy there- tion of limitation periods.
of). If the arbitral award or arbitration agreement
is not in English, the party shall furnish a duly
certi昀椀ed English-language translation thereof.

On the other hand, the enforcement of interna-

tional arbitral awards is regulated under Section
36(2) of the Arbitration Act, as well as the New
York Convention. Article III of the New York Con-
vention states that an award issued by a con-
tracting state can generally be enforced in any
other contracting state. Both the Arbitration Act
and the New York Convention provide that the
application shall make an application to the High
Court for enforcement, which must be accom-
panied by an original arbitral award (or a duly
certi昀椀ed copy thereof) and the original arbitration
agreement (or a duly certi昀椀ed copy thereof). If
the arbitral award or arbitration agreement is not
made in English, the party shall furnish a duly
certi昀椀ed English-language translation thereof.

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Oraro & Company Advocates is a full-service, including construction disputes, insolvency and
market-leading African law 昀椀rm established in restructuring cases, tax disputes, and interna-
1977, with a strong focus on dispute resolution tional arbitration (in which the team represented
and corporate and commercial law. Thanks to one of the biggest trade unions in Kenya). Oraro
a dedicated team of partners, associates and & Company Advocates is a full a昀케liate mem-
support sta昀昀, the 昀椀rm has been consistently ber of AB & David Africa (ABDA), a pan-African
ranked by Chambers Global as a top-tier 昀椀rm business law network committed to ensuring
in Kenya and arguably has one of the largest that businesses and projects succeed in Africa
dispute resolution teams in the country. Oraro by helping clients minimise the risks associated
& Company Advocates is involved in most of with doing business on the continent.
the headline and non-traditional areas of law,

Authors
Noella Lubano is a partner at Eva Mukami is an associate in
Oraro & Company Advocates the litigation department at
and a recognised dispute Oraro & Company Advocates,
resolution and arbitration expert. where she specialises in
With more than 14 years of arbitration, restructuring and
experience, she specialises in insolvency. With more than four
the tracing and recovery of assets, commercial years of experience, she has advised local and
litigation, and shareholder disputes, yet is also international clients from various target sectors
well regarded for her international arbitration in arbitration and mediation, constitutional law,
and insolvency and restructuring expertise. commercial litigation, and insolvency. Eva
Noella contributes a wealth of leadership recently advised a bank on the enforcement of
knowledge and experience. She spoke on third-party securities under the Insolvency Act
various topics at the International Arbitration 2015, in addition to advising an oil company on
Conference in Nairobi in Kenya in 2019 and its prospective claim against the National Land
Kigali in Rwanda in 2022. She has shared her Commission for denial of fair administrative
legal insights across the globe, including in the action during the latter’s compulsory
UK and Austria. acquisition of the oil company’s land. Eva is a
member of the Law Society of Kenya.

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KENYA LAW AND PRACTICE

Contributed by: Noella Lubano, Eva Mukami, Radhika Arora and Paul Kamara,
Oraro & Company Advocates

Radhika Arora is an associate in Paul Kamara is an associate in

the dispute resolution practice the dispute resolution
group at Oraro & Company department at Oraro & Company
Advocates. Her practice Advocates, where he specialises
specialises in banking and in arbitration, insolvency and
commercial litigation and both dispute resolution. He has
domestic and international arbitration. She has advised local and international clients in
been part of teams advising both local and various target areas such as dispute resolution,
international clients in various sectors, commercial litigation, and insolvency. Paul is
including construction, public procurement and currently involved in three notable arbitration
昀椀nancial services. In 2020, Radhika contributed disputes arising from the construction and
to the Kenyan chapter on international procurement sectors. He is also part of the
arbitration in Chambers & Partners’ Global legal team advising and defending several
Practice Guide. Radhika holds a Bachelor of statutory regulators and a government
Laws degree from the University of Kent, which corporation in suits commenced in the High
included a year spent studying European Legal Court, as well as the relevant tribunals
Studies at the University of Vienna. She is also challenging the decisions of said statutory
a member of the Law Society of Kenya. bodies and corporation. Paul is a member of
the Law Society of Kenya.

Oraro & Company Advocates

ACK Garden Annex
6th Floor
1st Ngong Avenue
PO Box 51236-00200
Nairobi
Kenya

Tel: +254 709 250 000

Email: [email protected]
Web: www.oraro.co.ke

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CHAMBERS GLOBAL PRACTICE GUIDES

Chambers Global Practice Guides bring you up-to-date, expert legal

commentary on the main practice areas from around the globe.

Focusing on the practical legal issues affecting businesses, the

guides enable readers to compare legislation and procedure and

read trend forecasts from legal experts from across key jurisdictions.

To find out more information about how we select contributors,

email [email protected]

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