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Post Reply: Enforcement and Appeal of Foreign Judgments in Kenya

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	In an increasingly globalized world, cross-border disputes are becoming more common, necessitating clear legal frameworks for the recognition and enforcement of foreign judgments. In Kenya, the enforcement of foreign judgments is primarily governed by the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43) and, in the absence of reciprocal agreements, the Civil Procedure Act (Cap 21) and Civil Procedure Rules, 2010. Additionally, appealing a Kenyan court’s decision on a foreign judgment or its enforcement involves navigating specific legal procedures. This article provides a detailed examination of the processes for enforcing and appealing foreign judgments in Kenya, with insights into recent cross-border litigation trends.
<h3 dir="ltr">Legal Framework for Enforcing Foreign Judgments in Kenya</h3>
<h4 dir="ltr">1. Foreign Judgments (Reciprocal Enforcement) Act (Cap 43)</h4>
The Foreign Judgments (Reciprocal Enforcement) Act, 1984 provides a streamlined process for enforcing judgments from countries with reciprocal enforcement agreements with Kenya. These countries include Australia, Malawi, Rwanda, Seychelles, Tanzania, Uganda, Zambia, and the United Kingdom. The Act applies primarily to civil and commercial judgments, such as those involving monetary awards or the delivery of movable property, but excludes certain matters, including:
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Judgments involving taxes, fines, or penalties.
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Judgments for exemplary, punitive, or multiple damages.
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Matrimonial disputes, child custody, or guardianship matters.
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Bankruptcy or insolvency proceedings.
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Social security or public assistance matters.
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<h4 dir="ltr">Process for Enforcement under Cap 43</h4>
To enforce a foreign judgment from a reciprocating country:
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Application to the High Court: The judgment creditor must apply to the High Court of Kenya to have the foreign judgment registered. This application must be made within six years from the date of the judgment or the last appeal decision.
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Supporting Documents: The application must include:
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A certified copy of the foreign judgment.
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An affidavit confirming that the judgment remains unsatisfied.
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Optionally, a certificate from the foreign court confirming its status.
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Ex Parte or Summons: If the judgment debtor was served with process in the foreign court and the appeal period has lapsed, the application may be heard ex parte. Otherwise, the court may issue summons to the judgment debtor to participate in the hearing.
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Registration: If the High Court is satisfied that the judgment meets the requirements of Cap 43, it will order the judgment to be registered. Once registered, the foreign judgment is treated as a Kenyan High Court judgment and can be enforced using standard execution methods under Order 22 of the Civil Procedure Rules, such as attachment of property or garnishee proceedings.
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<h4 dir="ltr">Grounds for Challenging Enforcement</h4>
A judgment debtor can challenge the enforcement of a foreign judgment under Section 9 of the Civil Procedure Act, which applies to both reciprocating and non-reciprocating countries. The grounds include:
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The foreign court lacked jurisdiction.
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The judgment was not given on the merits of the case.
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The proceedings violated natural justice (e.g., the debtor was not properly served).
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The judgment was obtained by fraud.
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The judgment conflicts with Kenyan public policy or law.
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There is a conflicting Kenyan judgment on the same matter.
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<h4 dir="ltr">2. Enforcement of Judgments from Non-Reciprocating Countries</h4>
For judgments from countries without reciprocal agreements, enforcement is pursued through common law principles, as established in cases like Jayesh Hasmukh Shah v. Navin Haria &amp; Another [2016] eKLR and Raw Bank PLC v. Yusuf Shaa Mohamed Omar &amp; Another [2020] eKLR.
<h4 dir="ltr">Process for Enforcement under Common Law</h4>
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Filing a Plaint: The judgment creditor must file a plaint in the High Court, treating the foreign judgment as a debt. The plaint must include:
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A concise statement of the claim and the amount of the judgment debt.
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A verifying affidavit.
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A list of witnesses and supporting documents, including a certified copy of the foreign judgment.
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Trial Process: The case proceeds as a civil suit, allowing the judgment debtor to challenge the validity of the foreign judgment under Section 9 of the Civil Procedure Act. If the creditor succeeds, the High Court issues a Kenyan judgment, which can then be enforced as a domestic decree.
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Time Limit: The action must be initiated within six years from the date of the foreign judgment, as per the Limitation of Actions Act (Cap 22).
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This process is more complex and time-consuming than enforcement under Cap 43, as it involves a full trial rather than a registration process.
<h4 dir="ltr">3. Execution of Enforced Judgments</h4>
Once a foreign judgment is registered (under Cap 43) or a Kenyan judgment is obtained (under common law), enforcement follows the procedures outlined in Order 22 of the Civil Procedure Rules. Common methods include:
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Attachment and Sale of Property: Seizing and selling the debtor’s assets.
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Garnishee Proceedings: Redirecting funds owed to the debtor by a third party (e.g., bank accounts).
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Civil Imprisonment: Under the Contempt of Court Act, a debtor may face imprisonment for failing to comply with a court order, though this is rare.
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<h3 dir="ltr">Appealing a Kenyan Court’s Decision on a Foreign Judgment</h3>
<h4 dir="ltr">1. Appeals from the High Court</h4>
Decisions of the High Court regarding the recognition, enforcement, or refusal of a foreign judgment can be appealed to the Court of Appeal, as provided under the Civil Procedure Act and Order 42 of the Civil Procedure Rules. The process includes:
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Filing a Notice of Appeal: The aggrieved party must file a notice of appeal within 14 days from the date of the High Court’s decision.
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Record of Appeal: Within 60 days, the appellant must file a record of appeal, including:
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The memorandum of appeal, outlining the grounds for appeal.
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Certified copies of the High Court’s judgment and decree.
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Typed proceedings and pleadings from the High Court.
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Grounds for Appeal: Appeals to the Court of Appeal are generally limited to questions of law, though factual errors may be considered if they are egregious or result in a miscarriage of justice.
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Stay of Execution: Filing an appeal does not automatically stay execution of the High Court’s decision. The appellant must apply for a stay of execution under Order 42, Rule 6 of the Civil Procedure Rules, demonstrating:
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Substantial loss if the stay is not granted.
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The application was made without unreasonable delay.
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Security for the performance of the decree (e.g., depositing the decretal amount).
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<h4 dir="ltr">2. Further Appeal to the Supreme Court</h4>
Appeals from the Court of Appeal to the Supreme Court are limited to cases involving:
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Interpretation or application of the Constitution of Kenya.
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Matters certified by the Court of Appeal or Supreme Court as being of general public importance.
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For example, in Ingang’a &amp; 6 Others v. James Finlay (Kenya) Limited [2023] KESC 22 (KLR), the Supreme Court declined to enforce a Scottish court’s locus inspection order, emphasizing that foreign decisions must be final and conclusive to be enforceable in Kenya. This case highlights the high threshold for Supreme Court appeals in cross-border litigation.
<h3 dir="ltr">Recent Cross-Border Litigation Trends in Kenya</h3>
<h4 dir="ltr">1. Increased Cross-Border Disputes</h4>
Globalization and Kenya’s role as a regional economic hub have led to a rise in cross-border disputes, particularly in commercial contracts, employment, and land matters. The James Finlay case illustrates the complexities of enforcing foreign interlocutory orders, with Kenyan courts prioritizing finality and sovereignty.
<h4 dir="ltr">2. Emphasis on Arbitration</h4>
Kenya’s Arbitration Act and its status as a signatory to the New York Convention (domesticated via Section 36(5) of the Arbitration Act) have made arbitration a preferred method for resolving cross-border disputes. Courts are reluctant to interfere in arbitral awards, except on limited grounds, promoting finality and efficiency.
<h4 dir="ltr">3. Judicial Restraint in Foreign Judgments</h4>
Kenyan courts have adopted a cautious approach to enforcing foreign judgments, as seen in Ingang’a &amp; 6 Others v. James Finlay (Kenya) Limited. The Supreme Court’s refusal to enforce a non-final foreign order underscores the importance of finality and compliance with Kenyan public policy.
<h4 dir="ltr">4. Reciprocal Agreements and International Treaties</h4>
Kenya’s participation in the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters has strengthened the framework for enforcing judgments from contracting states. However, challenges remain with non-reciprocating countries, where common law enforcement is slower and more contentious.
<h4 dir="ltr">5. Challenges with Non-Reciprocating Countries</h4>
Enforcement of judgments from non-reciprocating countries, such as the United States or China, remains complex due to the reliance on common law procedures. Recent cases, such as Raw Bank PLC v. Yusuf Shaa Mohamed Omar &amp; Another [2020] eKLR, highlight the need for clear evidence and adherence to procedural requirements.
<h3 dir="ltr">Practical Considerations</h3>
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Legal Representation: Engaging experienced legal counsel is critical, given the technical nature of cross-border litigation.
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Timeliness: Adhering to the six-year limitation period is essential to avoid time-barred claims.
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Evidence: Providing certified copies of foreign judgments and proof of service is crucial for successful enforcement.
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Public Policy: Judgments conflicting with Kenyan law or morality are unlikely to be enforced.
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<h2 dir="ltr">Conclusion</h2>
Enforcing and appealing foreign judgments in Kenya involves navigating a dual framework of statutory provisions and common law principles. The Foreign Judgments (Reciprocal Enforcement) Act provides a streamlined process for reciprocating countries, while common law governs non-reciprocating jurisdictions. Appeals are possible but are subject to strict procedural and substantive requirements, with recent trends showing a judicial preference for finality and compliance with Kenyan law. As cross-border litigation grows, Kenya’s legal system continues to evolve, balancing international cooperation with national sovereignty.
For expert advice on enforcing or appealing foreign judgments in Kenya, contact us today at +254 716 708 104 or info@lawguide.co.ke.
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