Enforcement of foreign judgments in Kenya is the subject of The Foreign Judgments (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya). The objective of the Act is to make provision for enforcement of judgments given in countries outside Kenya which accord reciprocal treatment to judgments given in Kenya.
Under the Act, a Judgment Creditor in whose favor a foreign judgment from a “designated country” has been made may apply and register the foreign judgment at the High Court of Kenya and such foreign judgment shall, for purposes of execution, be of the same force and effect as a judgment of the High Court of Kenya entered at the date of registration. Subject to exceptions in Section 18 of the Act, a judgment of a “designated court” shall be recognized in any court in Kenya as conclusive between the parties thereto, as to the matter adjudicated upon, in all proceedings (no matter by which of the parties in the designated court they are instituted) on the same cause of action and may be relied upon by way of defense or counterclaim in those proceedings. The designated countries under the Kenyan Foreign Judgments (Reciprocal Enforcement) Act are Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom, and the Republic of Rwanda.
A question arises as to the procedure to be adopted where a Judgment Creditor has a decree and wishes to enforce and execute the same from a country that is not a designated country under the provisions of the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya).
The court of appeal in the case of Jayesh Hasmukh Shah vs. Navin Haria & another [2016] eKLR cited with approval the case of Keshavji Ramji Ladha vs. Bank of Credit and Commerce International – SA (BCCI), Civil Appeal No. 44 of 2004, where the court had earlier observed that;
“It is now trite in civil litigation in this jurisdiction that a judgment of whatever nature, whether foreign or otherwise, is good until otherwise declared. But it is not in its form as a judgment per se that it is capable of being enforced. It has to take the shape of another procedural document before it can reach any execution stage”.
Pursuant to Section 3 of the Judicature Act, (Cap 8, Laws of Kenya), the jurisdiction of the High Court of Kenya is exercised inter alia in conformity with the Constitution, all other written laws and subject to certain qualifications, the substance of common law of England. In the High Court of Kenya, a judgment of a foreign court which is a “designated court” of a reciprocating “designated country” is capable of registration in Kenya and is enforceable as a High Court of Kenya judgment.
The basic principle upon which neighboring or other states provide for enforcement of foreign judgments is one of reciprocity as was expressed by the court of Appeal in Intalframe Ltd -v- Mediterranean Shipping Company, (1986) KLR. Thus, where there is no reciprocal agreement, then a different procedure has to be adopted in enforcing the said foreign judgment as the Court of Appeal noted in Jayesh Hasmukh Shah v Navin Haria & another [2016] eKLR, that:
“…In the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common-law…”
Therefore, in the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in the common law. The Court in Raw Bank PLC v Yusuf Shaa Mohamed Omar & another [2020] eKLR considered the applicable common law principles and taking into account the provisions of Section 9 of the Civil Procedure Act, and set down the following requirements to be fulfilled by a Judgement Debtor in enforcing a foreign judgment in Kenya from a non-designated country:
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- A party has to file a plaint at the High Court of Kenya providing a concise statement of the nature of the claim, claiming the amount of the judgment debt, supported by a verifying affidavit, list of witnesses and bundle of documents intended to be relied upon. A certified copy of the foreign judgment should also be exhibited to the plaint
- It is open to a Defendant to challenge the validity of the foreign judgment under the grounds set out in Section 9 of the Civil Procedure Act.
- A Judgment Creditor is entitled to summary judgment under Order 36 unless the defendant Judgment Debtor can satisfy the court that there is a real prospect of establishing at trial one of the grounds set out in Section 9 of the Civil Procedure Act.
- If the foreign Judgment Creditor is successful after trial, the Judgment Creditor would have the benefit of a High Court judgment and the Judgment Creditor would be entitled to use the procedures of the Kenyan courts to enforce the foreign judgment which would then be executed as a Kenyan judgment.
- The money judgment in the foreign judgment has to be final and conclusive. It can be final and conclusive even though it is subject to an appeal. Under Section 9 of the Civil Procedure Act, a foreign judgment is conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim, litigating under the same title except:
- where it had not been pronounced by a court of competent jurisdiction;
- where it had not been given on the merits of the case;
- where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law was applicable;
- where the proceedings in which the judgment was obtained were opposed to natural justice;
- where it had been obtained by fraud; or
- where it sustained a claim founded on a breach of any law in force in Kenya.
- Under Section 4 (4) of the Limitation of Actions Act action for enforcement of a foreign judgment has to be brought in Kenya within 12 years of the date of that judgment.
- The foreign court has to have had jurisdiction, (according to the Kenyan rules on conflict of laws) to determine the subject matter of the dispute and the parties to the foreign court’s judgment and the enforcement proceedings have to be the same or derive their title from the original parties.
- The Kenya High Court would generally consider the foreign court to have had jurisdiction where the person against whom the judgment was given:
- was, at the time the proceedings were commenced, habitually resident or incorporated in or having a principal place of business in the foreign jurisdiction, or
- was the claimant or counterclaimant in the foreign proceedings, or
- submitted to the jurisdiction of the foreign court, or
- agreed, before commencement, in respect of the subject matter of the proceedings to submit to the jurisdiction of the foreign court.
- Where the above requirements are established to the satisfaction of the Kenya High Court, the High Court would not re-examine the merits of the foreign court judgment. The foreign judgment would be enforced on the basis that the defendant had a legal obligation as a matter of common law, recognized by the High Court, to satisfy the money decree of the foreign judgment.
In conclusion, therefore, it is evident that its quote tedious in enforcing and executing a Judgment or Decree from a country that is not a designated country under the provisions of the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya). Under the Act, Kenya only has reciprocal arrangements with 8 other nations. As the entire world becomes more interconnected as the result of the propagation of media technologies throughout the world, it is our hope that Kenya will enter into more reciprocal arrangements with other countries to ensure that enforcing of Decrees from Kenyan Courts to the said Countries and those from the said foreign Countries to Kenya will be less costly, timely and improve the friendly relationships between the Countries.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact the following: Caxstone Phelix Kigata vide caxstone@wamaeallen.com.
About the author
Caxstone specializes in civil, employment and labour disputes, constitutional law, family law and succession, and environment and land matters. He has amassed a wealth of knowledge and experience in litigation which is evident in the successes obtained for clients. He is an active member of the Employment and Labour Relations Court Bar-Bench committee.
