ENFORCEMENT OF A FOREIGN JUDGEMENT IN KENYA
The enforcement of a foreign judgement in Kenya is subject to The Foreign Judgements (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya). The objective of the Act is to make a provision in Kenya for the enforcement of foreign judgements. These are judgements that are given in countries outside Kenya and recognize the reciprocal treatment to them.
Section 2 of the Act defines a judgement creditor as a person in whose favour a judgement as given. A judgement debtor on the other hand is a person against whom a judgement was given or enforced under the law of the country of the original court.
The Act excludes certain matters from its application. Some of the matters that it excludes from its application are: Matrimonial causes or matters determining rights in property arising out of matrimonial relationship. It also excludes proceedings relating to the custody or guardianship of children and matters relating to social security or public assistance where a sum of money is payable by or to a public authority or fund.
The process of enforcing a foreign judgement is that a judgement creditor may apply to the High Court to have the judgement registered. Additionally, under the Limitation of Actions Act, an action to enforce the award may not be brought after six years of the date of the judgement. Where an application is made and the High Court is satisfied, it shall order the judgement to be registered under Section 6 of the Act.
The application may be made ex parte where it is proven that the judgement debtor is personally aware of or participated in the original case and the appeal window is closed. The court may allow the application however the notice of the registration of the judgement should be served on the judgement debtor. In the event the court does not grant the application, it may direct that summons are issued to the judgement debtor who will then be allowed to participate in the hearing of that application.
The judgement has the same force and effect as a judgement of the High Court entered at the date of registration. It may be set aside by an application made by the judgement debtor. If the High Court is satisfied that any of those grounds has been established, it shall be set aside.
It is to note that the Act only extends to countries which the Minister is satisfied that the provisions of the Act are reciprocal. This was laid down in the case of Intralframe Ltd v Mediterranean Shipping Company (1986) KLR. The designated countries are Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Republic of Rwanda.
For foreign judgements that do not originate from a reciprocal country, the Court of Appeal has laid jurisprudence in the case of Jayesh Hasmukh Shah v Navin Haria & Another (2016) eKLR. The court stated that the foreign judgement would be enforceable as a claim in common law. It is however quite tedious to enforce a foreign judgement from a country that is not a designated country under the Foreign Judgements (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya).
In conclusion, Kenya may soon enter into reciprocal arrangements with other countries to ensure a seamless process in enforcing a foreign decree from a foreign country to Kenya. Also, decrees in Kenyan courts will be able to be enforced in the foreign countries.
Article by: Wendy Kuyoh
We are available to assist and advice on the enforcement of a foreign judgement in Kenya.