Can an Arbitration Award Be Set Aside? Section 35 (kenya), Grounds, Timelines and Court Approach

Can an arbitration award be set aside in Kenya? The short answer is yes, but only through the narrow statutory gateway created by Section 35 of the Arbitration Act (Cap 49, Laws of Kenya). The provision mirrors Article 34 of the UNCITRAL Model Law on International Commercial Arbitration and gives the High Court a carefully circumscribed supervisory jurisdiction to annul an award on specific grounds. Critically, any application must be filed within three months of the date on which the applicant received the award, a deadline the Kenyan courts enforce strictly.

This guide explains the section 35 grounds, the procedural timelines, the evidentiary standards Kenyan courts apply, and the practical steps a party should take immediately after receiving an unfavourable award.

Quick Answer, Can an Arbitration Award Be Set Aside?

Yes. Under Section 35 of Kenya’s Arbitration Act, a party may apply to the High Court to set aside an arbitral award. The application must demonstrate at least one of the statutory grounds, which fall into two categories: grounds the applicant must prove (such as jurisdictional defects, procedural irregularity, or the arbitrator exceeding the scope of the reference), and grounds the court may raise on its own motion (the dispute not being arbitrable, or the award conflicting with public policy).

Three points every practitioner should note at the outset:

• Statutory route. Section 35 is the exclusive mechanism to set aside arbitral awards in Kenya. There is no inherent jurisdiction outside the statute.
• Grounds are exhaustive. The court will not re-examine the merits of the dispute; it reviews process, jurisdiction and public policy only.
• The three-month deadline is rigid. An application must be filed within three months of receiving the award, late applications are struck out.

Legal Framework: Section 35 and the Arbitration Act Kenya

Kenya’s Arbitration Act, originally enacted as Act No. 4 of 1995, was substantially modelled on the UNCITRAL Model Law on International Commercial Arbitration. Section 35, which appears in Part IV of the Act, is the sole recourse against an arbitral award and restricts the High Court’s role to one of supervisory, not appellate, review. The legislative intent is to uphold the finality of arbitration while preserving a safety-valve for serious procedural or jurisdictional failures.

Section 35(1) provides: “An arbitral award may be set aside by the High Court only if” the applicant proves one of the grounds listed in sub-section (2)(a), or the court finds that the subject-matter is not arbitrable or that the award conflicts with public policy under sub-section (2)(b). This language closely tracks Article 34 of the Model Law, and Kenyan courts have consistently looked to Model Law commentary and comparative jurisprudence when interpreting the section.

Several related provisions interact with section 35 in practice. Section 32A (introduced by the 2009 amendment) removes the previous right of appeal on questions of law, reinforcing finality. Section 36 governs recognition and enforcement of domestic awards, while Part VII (sections 36A–37) deals with the recognition of foreign awards under the New York Convention. Understanding where section 35 fits within this architecture is essential: it applies at the seat of arbitration, and only to awards made in proceedings whose seat is Kenya.

For foreign awards, the separate enforcement-refusal regime under Part VII applies. Industry observers expect the Arbitration (Amendment) Bill 2025 to further clarify several of these intersections, although at the time of writing the Bill had not yet been enacted.

Who Can Apply and When: Timelines and Time Bars

The Three-Month Time Limit

Section 35(3) of the Arbitration Act Kenya provides that an application to set aside an arbitral award may not be made after three months have elapsed from the date on which the applicant received the award. This is a hard deadline. The clock starts running from the date of receipt, not the date the award was signed, published, or communicated to the other party.

The distinction between “receipt” and “publication” matters in practice. The Kenyan High Court has held that the relevant date is when the award is physically or electronically delivered to the party (or its authorised representative), not the date stated on the face of the award. Practitioners should therefore obtain, and preserve, documentary proof of the exact delivery date: courier receipts, email timestamps, or signed acknowledgments. Any ambiguity about receipt can be exploited by a respondent seeking to have a late application struck out.

Where the tribunal issues a correction, interpretation, or additional award under section 34, the three-month period for challenging the corrected or additional element runs from the date of receipt of that supplementary decision.

Extensions and Suspension

Section 35 does not expressly empower the court to extend the three-month time limit. Kenyan courts have generally treated it as a jurisdictional bar rather than a mere procedural timeline subject to the court’s discretion under the Civil Procedure Rules. The likely practical effect is that a party that misses the deadline has no remedy, regardless of the reason for the delay.

The court does, however, have power under section 35(4) to suspend the set-aside proceedings to give the tribunal an opportunity to resume proceedings or take other action that will eliminate the grounds for setting aside. This suspension mechanism is designed to allow remittal, rather than outright annulment, and is increasingly relevant in complex multi-issue arbitrations.

Section 35 Grounds to Set Aside an Arbitral Award: Practical Explanation

Section 35(2) of the Arbitration Act Kenya provides an exhaustive list of grounds on which an arbitration award can be set aside. They divide into two categories: grounds that require proof by the applicant (sub-section (2)(a)), and grounds the court may raise of its own motion (sub-section (2)(b)). Each ground is discussed below with its practical proof standard.

Incapacity of a Party or Invalid Arbitration Agreement, s.35(2)(a)(i)

An award may be set aside if the applicant proves that a party to the arbitration agreement was under some incapacity, or that the arbitration agreement itself is not valid under the law to which the parties subjected it, or, failing any indication, under Kenyan law. In practice, this ground is rarely invoked successfully. The applicant must adduce evidence of the specific incapacity (for instance, minority, mental incapacity, or corporate ultra vires at the date the agreement was executed) or demonstrate a clear defect in formation, such as the absence of writing required by section 4 of the Act.

Lack of Proper Notice or Inability to Present Case, s.35(2)(a)(ii)

This ground covers situations where the applicant was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings, or was otherwise unable to present its case. Kenyan courts treat this as a due-process safeguard. The applicant must show a concrete denial of the right to be heard, not merely dissatisfaction with the tribunal’s procedural rulings. Evidence typically includes correspondence demonstrating that hearing notices were sent to the wrong address, that critical documents were withheld, or that the tribunal refused reasonable adjournment requests that left a party unable to call essential witnesses.

Award Deals with Matters Beyond the Scope of Submission, s.35(2)(a)(iii)–(iv)

If the award deals with a dispute not contemplated by, or not falling within, the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission, it may be set aside under this ground. Importantly, the Act provides a partial-severance mechanism: if the decisions on matters submitted can be separated from those not submitted, only the latter portion may be set aside. The practical burden is on the applicant to demonstrate precisely which part of the award exceeds the reference, with close textual analysis of the arbitration clause and the terms of reference or statement of issues agreed during the proceedings.

Composition of the Tribunal or Procedure Not in Accordance with Agreement, s.35(2)(a)(v)

An award may be challenged if the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the parties’ agreement, or, absent such agreement, was not in accordance with Part II of the Arbitration Act. This ground requires proof that the deviation was material; minor procedural irregularities that did not affect the outcome will not suffice. Common examples include the appointment of a sole arbitrator when the agreement specified a three-member panel, or the tribunal’s failure to follow agreed institutional rules (such as the Nairobi Centre for International Arbitration rules).

Public Policy Conflict, s.35(2)(b)(ii)

The court may, on its own motion, set aside an award if it finds that the award is in conflict with the public policy of Kenya. This is the ground most frequently invoked, and most frequently misunderstood. The Kenyan courts have consistently adopted a narrow interpretation of “public policy,” limiting it to cases where enforcement would be contrary to the most basic notions of morality and justice. Awards tainted by fraud, corruption, bribery, or illegality fall within this ground. So do awards that violate fundamental constitutional rights or contravene mandatory statutory provisions of a public-interest character.

The courts have rejected attempts to use public policy as a back door to re-argue the merits or to challenge errors of law or fact within the tribunal’s jurisdiction.

Evidentiary threshold summary: Across all section 35 grounds, the burden of proof lies on the applicant (except for sub-section (2)(b), which the court may raise sua sponte). The standard is the ordinary civil standard, the balance of probabilities, but Kenyan courts apply it with a strong presumption in favour of the validity of the award. The applicant must point to specific, particularised evidence of the ground relied upon; generalised assertions of unfairness or error are insufficient to set aside an arbitral award in Kenya.

Evidence and Drafting Strategy for an s.35 Application

An application to set aside an arbitral award Kenya is made by way of a Notice of Motion supported by an affidavit, filed in the Commercial and Admiralty Division of the High Court at Nairobi (or the relevant High Court station where the arbitration was seated). Careful pleading and exhibit selection are essential, poorly drafted applications are the most common reason for failure.

Must-have affidavit exhibits:

• The arbitral award. A certified or authenticated copy, with proof of the date of receipt.
• The arbitration agreement. The underlying clause or separate agreement (and any amendments).
• Terms of reference / statement of issues. Critical for scope-of-submission arguments.
• Correspondence and procedural orders. Hearing notices, adjournment rulings, document requests, curated to demonstrate the specific ground.
• Witness statements or expert reports (if relevant). Only where the ground requires proof of a factual matter that was excluded from the record.

Sample chronology table:

Model reliefs / prayers:

• That the arbitral award dated [date] be set aside in its entirety (or in part, specifying the severable portion).
• That the proceedings of the arbitral tribunal be declared a nullity on the ground of [specify s.35(2) sub-paragraph].
• That the court suspend enforcement of the award pending determination of this application.
• That costs of and incidental to this application be borne by the respondent.

Drafting tips: Narrow the pleadings to specific factual matters tied to a particular sub-paragraph of section 35(2). Avoid scatter-gun pleading that invokes every ground without particularisation. Courts have criticised applicants who plead “public policy” as a catch-all without identifying the specific norm or principle offended. Each ground should be supported by a distinct affidavit paragraph cross-referencing a specific exhibit. Include a clear statement of the date of receipt and the three-month computation to pre-empt any time-bar objection.

Court Approach and Typical Outcomes When a Party Seeks to Set Aside an Arbitral Award

The Kenyan High Court approaches section 35 applications with a clear supervisory, not appellate, mindset. Courts have repeatedly emphasised that they will not re-weigh evidence, substitute their view of the facts, or correct perceived errors of law that fall within the tribunal’s jurisdiction. The role of the court is limited to determining whether one of the statutory grounds has been established.

Where a ground is established, the court has three principal remedies: it may set aside the award in whole or in part; it may remit the matter to the tribunal under section 35(4) to allow the defect to be cured; or, in rare cases, it may simply dismiss the application if satisfied that the irregularity did not materially affect the outcome. The trend in recent appellate decisions has been to favour remittal over outright annulment wherever the defect is curable, for instance, where the tribunal exceeded the scope of the reference on a single issue but its findings on other issues remain valid.

On the question of stays, the filing of a section 35 application does not automatically suspend enforcement. An applicant seeking a stay must make a separate application and demonstrate, among other things, that there is a serious question to be tried and that damages would not be an adequate remedy. Early indications suggest that courts are increasingly willing to grant conditional stays, for example, requiring the applicant to provide security for the amount of the award as a condition of the stay, reflecting a pragmatic approach that balances finality against justice.

Industry observers expect the appellate courts to continue narrowing the scope of public policy challenges, treating them as genuine last-resort arguments rather than routine grounds for delay.

Practical Traps and Defence Strategies for Respondents

Applicants frequently fall into avoidable traps that doom their section 35 applications before the merits are reached:

• Late filing. Missing the three-month deadline is fatal. Diarise the date of receipt immediately.
• Vague pleading. Generalised complaints about the tribunal’s reasoning, without tying them to a specific statutory ground, will be dismissed.
• Conflating appeal and set-aside. Attempting to challenge the arbitrator’s findings of fact or law, rather than process, jurisdiction or public policy, is the most common reason for failure.
• Failing to seek a stay. The respondent may enforce the award while the application is pending, leaving the applicant with a pyrrhic victory even if the award is set aside.

Respondents defending against a set-aside application have several powerful tools. They may argue waiver, that the applicant participated in the arbitration without objection and is now estopped from raising procedural defects it knew about at the time. They may challenge the computation of the three-month period. They may also apply for leave to enforce the award and execute against assets while the section 35 application is pending, thereby shifting the practical burden to the applicant to seek a stay.

Foreign Awards and Enforcement Concerns

Section 35 applies only to awards made in arbitrations whose seat is Kenya. If the award is foreign, that is, made in a state other than Kenya, the mechanism for challenging enforcement is different. Kenya is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and Part VII of the Arbitration Act Kenya gives effect to it. A party resisting enforcement of a foreign award in Kenya does so under section 37, which mirrors the Convention’s refusal grounds.

The interaction between set-aside at the seat and enforcement elsewhere raises complex strategic questions. If an award is set aside at the seat (for example, by a court in London or Paris), the Kenyan court has discretion, but is not obliged, to refuse enforcement. Conversely, a party may seek to enforce a foreign award in Kenya even while a set-aside application is pending at the seat, and the Kenyan court may adjourn the enforcement proceedings pending the outcome abroad.

For parties involved in cross-border disputes, it is essential to coordinate the set-aside and enforcement strategies across jurisdictions to avoid conflicting outcomes.

Conclusion: Practitioner Checklist, What to Do Now

Whether you are considering whether an arbitration award can be set aside, or defending against such an application, the following six-point checklist distils the key action items:

1. Record the receipt date. The three-month clock under section 35(3) starts on the date you received the award. Preserve documentary proof immediately.
2. Identify the specific statutory ground. Review section 35(2)(a)(i)–(v) and (2)(b)(i)–(ii) and select the ground(s) supported by the evidence, do not plead broadly.
3. Assemble the evidence. Prepare the arbitration agreement, terms of reference, procedural orders and all correspondence relevant to the ground(s).
4. Draft a focused affidavit. Each ground should be supported by a distinct paragraph cross-referencing a specific exhibit.
5. Apply for a stay. File a separate application to suspend enforcement; consider whether offering security will strengthen the stay application.
6. Instruct specialist counsel early. Section 35 applications demand expertise in arbitration law and High Court commercial practice, seek advice from a dispute resolution specialist without delay.

Sources

1. Arbitration Act (Kenya), Nairobi Centre for International Arbitration (NCIA)
2. Kenya Law, Arbitration Act, No. 4 of 1995 (Consolidated)
3. SheriaPlex, Section 35, Arbitration Act (Cap 49)
4. Strathmore University, Academic Commentary on Section 35
5. UNCITRAL Model Law on International Commercial Arbitration