Recognition and Enforcement of foreign judgments in Kenya


Recognition and enforcement of foreign judgments in Kenya is governed by laws found in statutes, treaties and the common law. The application of the law depends primarily on the jurisdiction whose courts have issued the foreign judgment (original judgment or court), as well as the date of issue and subject matter of the foreign proceedings.

Statute

The primary statute which governs enforcement of foreign judgements in Kenya is the Foreign Judgement (Reciprocal Enforcement) Act [CAP 43 of the Laws of Kenya]. However, the Act only applies to enforcement of Judgements originating from countries outside Kenya which accord reciprocal treatment to judgements given in Kenya. These countries as listed under the Act include Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and the Republic of Rwanda. The Act does not apply to judgments or orders

  • whereby a sum of money is payable or an item of movable property is deliverable in respect of taxes or other charges of a similar nature or in respect of a fine or other penalty;
  • Judgments that are concerned with the payment of damages to the extent that they are exemplary, punitive or multiple;
  • Those concerned with the protection or guardianship of children;
  • Judgments that mandate the periodic payments to spouses or former spouses.
  • Judgments that are concerned with the management of the property or affairs of an incompetent person;
  • Bankruptcy proceedings;
  • Judgments regarding payments of money in matters of succession;
  • Matters of social security or public assistance;
  • Injuries, damage or death resulting from nuclear accidents.

Treaty

Kenya has adopted the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters. This Convention applies to decisions rendered in civil or commercial matters by the courts of Contracting States. The Convention does not apply to decisions the main object of which is to determine: the status or capacity of persons or questions of family law, including personal or financial rights and obligations between parents and children or between spouses; the existence or constitution of legal persons or the powers of their officers; questions of succession; questions of bankruptcy, compositions or analogous proceedings, including decisions which may result therefrom and which relate to the validity of the acts of the debtor; questions of social security; questions relating to damage or injury in nuclear matters; decisions for the payment of any customs duty, tax or penalty.

 

Common Law

in the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common law. The landmark case of Adams v Cape Industries plc [1990] Ch 433 laid down the common law principles that govern the enforcement of foreign judgments. The principles are summarised as follows:

“…Where a foreign court of competent jurisdiction has adjudicated a certain sum to be due to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained. In deciding whether a foreign court was one of competent jurisdiction, the courts will apply not the law of the foreign court itself but English rules of private international law. The competence of the foreign court is the competence of the court in an international sense, that is, its territorial competence over the subject matter and the defendant. Its competence or jurisdiction in any other sense is not material...”.

Under common law, the onus will be on the plaintiff seeking to enforce the foreign judgment to prove the competence of such court to assume jurisdiction although that evidentiary burden may shift during the trial.

General requirements for enforcement of foreign judgments

  • The foreign judgment must be final and have no conflict with prior judgments. A foreign judgment is final for enforcement purposes even if an appeal is pending against it in the foreign jurisdiction.
  • The judgment of a foreign court that cannot be enforced by execution in that state’s court cannot be enforced by a Kenyan court.
  • The foreign court must have had jurisdiction over the defendant. Jurisdiction is confirmed if the cause of action arose within the jurisdiction of the foreign court, if the defendant voluntarily submitted to the court’s jurisdiction or if he resided there or had a place of business there, or where the matter is contractual the contract was substantially performed in the country of that court.
  • The defendant must have been given notice of the court proceedings against him in conformity with the rules of natural justice and due process of law. Notice should be given in conformity with the laws of that foreign court.
  • The foreign judgment must not be contrary to Kenyan public policy. Anything inconsistent with the Kenyan domestic laws, morality and sense of justice or national interests will be deemed contrary to Kenyan public policy.
  • The foreign judgment is only enforceable within six years of the date of judgment or six years after the last judgment where there may have been appeals from the original judgment.

Procedure for enforcement of foreign judgments

Enforcement of a foreign judgment from designated countries where there is a reciprocating enforcement mechanism is by filing of a formal application in the High Court in a prescribed form. The motion is to be accompanied by an affidavit confirming that the judgment has not been satisfied and a certified copy of the judgment must be exhibited.  A certificate under the seal of the foreign judge certifying the status of the court may be required.

For enforcement of a foreign judgment from a non-designated country, a party must file a plaint at the High Court of Kenya providing a concise statement of the nature of the claim, claiming the amount of the judgement debt, supported by a verifying affidavit, list of witnesses and bundle of documents intended to be relied upon. A certified copy of the foreign judgement should be exhibited to the Plaint.

A foreign judgment must be authenticated by a competent authority in its country of origin. If the judgment is in a language other than English, it is required to be translated into English by a sworn translator or by any other person so authorised in either State.

Security for Costs

Kenyan courts may order a foreign plaintiff to provide security for the defendant’s costs in the event that the defendant succeeds in opposing enforcement.

Duration for enforcement of a foreign judgment

It takes  between  1  to  2  years depending  on  the  complexity  of  the  defences put against  enforcement.





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