HOW TO ENFORCE A FOREIGN JUDGMENT IN KENYA
A guide for businesses and individuals
If you have obtained a judgment outside Kenya and want to enforce it locally, Kenyan law provides a clear legal framework for recognition and execution of the same.
This guide explains:-
⢠Which foreign judgments are enforceable
⢠The legal requirements
⢠Step-by-step registration process
⢠Common pitfalls to avoid
What Is a Foreign Judgment in Kenya?
As per Section 2 of the Civil Procedure Act, a foreign Judgement is a judgment from a Court outside Kenya. Enforcement of the same may be established by Treaty or follow General Principles of International Law. Generally, in Kenya, enforcement of foreign judgments delivered in countries which accord reciprocal treatment to judgments given in Kenya is governed by the Foreign Judgments (Reciprocal Enforcement) Act (elsewhere âthe Actâ).
What are the countries which accord reciprocal treatment to judgments given in Kenya?
According to the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order judgments given by superior courts of the following countries are enforceable in Kenya-
a. Australia;
b. Malawi;
c. Seychelles;
d. Tanzania;
e. Uganda;
f. Zambia;
g. the United Kingdom; and
h. Republic of Rwanda.
Notably and as per Section 4 of the Act, a foreign Court must have Jurisdiction to adjudicate over the cause of action. Automatically, this begs the following questions:-
When does a foreign Court have competent jurisdiction over a cause of action?
As per Section 4 of the Act, a foreign Court is said to have competent jurisdiction whereâ
a. the judgment debtor, being the defendant in the original court, submitted to the jurisdiction of the court by voluntarily appearing in the proceedings;
b. the judgment debtor was plaintiff, or counterclaimed, in the proceedings in the original court;
c. the judgment debtor, being the defendant in the original court, had, before the commencement of the proceedings, agreed otherwise than in pursuance of some statutory requirement, in writing or by an oral agreement confirmed in writing, to submit, in respect of the subject matter of the proceedings or in respect of disputes of the kind which were the subject matter of the proceedings, to the jurisdiction of the original court or of any other court of the country of the original court;
d. the judgment debtor, being the defendant in the original court, was, at the time when the proceedings were instituted, habitually resident in the country of the court or, not being a natural person, had its place of incorporation or its principal place of business in that country, or, if unincorporated, had its headquarters there;
e. the judgment debtor, being the defendant in the original court, had an office or place or business in, or, not being a natural person, had a branch (other than a subsidiary corporation) in, the country of that court and the proceedings in that court were in respect of a transaction effected, or an occurrence arising from business carried out, by, through or at that office, place or branch;
f. the judgment debtor, being the defendant in the original court, was conducting business within the country of the original court (otherwise than through a subsidiary corporation), had appointed an agent there to receive service or process in respect of that business and the proceedings in that court were in respect of a transaction effected in connection with, or of an occurrence arising from, that business;
g. in the case of a claim arising out of a contract, the obligation which was the subject of the proceedings was, or was to be, wholly or mainly performed in the country of the original court;
h. in the case of a judgment given in an action in rem or any other action to determine rights of ownership, use or possession in immovable property or tangible movable property, the property in question was, at the institution of the proceedings in the original court, situated in the country of that court; or
i. in the case of an action to recover damages for physical injury to the person, or the death of a person, or for damage to tangible property, the circumstances giving rise to injury, death or damage substantially occurred in the country of the original court or the injury or damage was suffered in that country.
When will a foreign Judgment be rejected in Kenya?
Under Section 9 of the Civil Procedure Act, Foreign Judgements are not conclusive in Kenya where-
a. where the judgment was not pronounced by a court of competent jurisdiction;
b. where it has not been given on the merits of the case;
c. where it appears on the face of the proceedings the judgment is founded on an incorrect view of international law or a refusal to recognize the law of Kenya in cases in which such law is applicable;
d. where the proceedings in which the judgment was obtained are opposed to natural justice;
e. where the judgment has been obtained by fraud; and
f. where the judgement sustains a claim founded on a breach of any law in force in Kenya.
Step-by-Step Process to Enforce a Foreign Judgment in Kenya
Step 1: Prepare Required Documents
The Application for enforcement of a foreign judgment in Kenya must meet the requirements set out below:
a. It should be accompanied by a certificate in the prescribed form or to the same effect issued from the foreign court under its seal and signed by a judge or registrar thereof or by an affidavit to the same effect;
b. It should be accompanied by the judgment or the exemplification or a certified or duly authenticated copy thereof and, where the judgment is not in the English language, certified by a notary public on the Registrar of the original court or authenticated by affidavit;
c. It should also be accompanied by an affidavit stating that at the date of application; the judgment remains unsatisfied, it can be enforced by execution in the country of the original court, and where the judgment is registrable only in respect of certain of its provisions, the provisions in respect of which it is sought to register the judgment;
d. Where the judgment is given by a superior court of a Commonwealth country, it must be accompanied by a certificate under its seal and signed by a judge or registrar thereof certifying that the court is a superior court in that country unless otherwise ordered by the High Court; and
e. It must be accompanied by such other evidence as may be prescribed.
Step 2: File the Application in the High Court
As per Section 5 of the Act, a judgment creditor in proceedings of a foreign Court may apply to the High Court in Kenya to have that judgment registered within six years of the date of the judgment or, where an appeal against the judgment has been preferred, the date of the last judgment in the appeal proceedings.
Step 3: Registration of the Judgment
Where the High Court is satisfied by the Application for enforcement of the foreign judgement, it then allows the same to be registered. As such, the Judgement becomes enforceable like a Kenyan one.
Step 4: Enforcement (Execution)
Once registered, you can proceed with attachment of the debtorâs property, Garnishee proceedings (bank accounts) and/or auction through licensed auctioneers.
Step 5: Possible Challenge by Debtor
However, as per Section 10 of the Act, the Judgement debtor may make an application to the High Court to have the Judgment set aside citing contravention of the Act in enforcement. This necessitates proper and surgical legal preparation.
Practical Challenges in Enforcement
From practice, the biggest issues include but are not limited to; Improper documentation, Filing outside limitation period, Jurisdiction disputes, Fraud allegations, and/or Difficulties tracing debtor assets. This is where legal representation significantly improves success rates.
Worry not, at Musa & Musa Advocates, we do not discriminate, whether you are the Judgement Debtor or the Creditor, you can always reach out for personalized legal solutions tailored to meet your unique needs as regards foreign judgements.
