Introduction
Foreign judgements are judgments that have emanated from another court in another country. For valid reasons, a party would want to have it enforced/applied in different A country. E.g the person they sued no longer resides in the country which judgement was delivered.
In Kenya this is governed by the Foreign Judgments (Reciprocal Enforcement) Act 1984. It gives provisions for the enforcement of judgments made in countries outside Kenya. However, these countries must accord mutual treatment to judgments given in Kenya. Section 4(1) of the Act outlines the instances where the court shall be treated as having jurisdiction whereas section 4(2) the instances where court shall not be treated as having had jurisdiction.
The Law
A judgment creditor is required to apply to the High Court to have the judgment registered in Kenya. This must be done within six years from the date of the judgment. The application may be made ex parte and where the court is satisfied that the judgment debtor was served with process in the foreign court or where the time set to appeal the judgment has lapsed, it shall proceed to hear the application ex parte. However, it may direct that summons be issued to the judgment debtor.
The applicant must also have attached a certified or duly authenticated copy of the judgment together with an affidavit stating that at the time of the application, the judgment had not been satisfied, it is capable of enforcement by the foreign court through execution and if required, the parts of the judgment that the judgment creditor would require registered along with any other relevant evidence as may be prescribed.
Once the High Court is satisfied that the judgment creditor’s application meets the requirement, it shall pass an order that the foreign judgment be registered in Kenya. Once registered, the foreign judgment shall be, for purposes of enforcement and execution as discussed, of the same force and effect as a judgment by the High Court of Kenya as at the date of registration.
In the case of EAST AFRICAN DEVELOPMENT BANK V DARI LIMITED & 5 OTHERS [2020] EKLR
The Applicant/Judgment Creditor (J.C) sought orders to have a judgment delivered by the High Court of Justice Business and Property Courts of England and Wales, be recognized and registered as a judgment of the High Court in Kenya and the Judgment and Order be enforced within the jurisdiction of this Honourable Court.
The court noted that:-
“….At the hearing of the application Prof. Githu Muigai S.C. cited the provisions of Sections 5(2) (a) (ii) and 5(2) (b) of the Foreign Judgments (Reciprocal Enforcement) Act (herein after “the Act”) to justify the presentation of the application ex parte. Counsel submitted that the respondents were duly served with all the court’s processes before the English Court and that the respondents appeared, participated in the proceedings before the said court which ultimately entered summary judgment in favour of the applicant herein. Counsel further submitted that under the Act, the judgment of the English court is expressly recognized in our jurisdiction and that the applicant, being a successful litigant before the English Court is entitled to the enforcement of the said judgment in Kenya…….”
The court went further to state
“…..From the above definition, it is clear that in order for a judgment to qualify for enforcement under the Act, the same must emanate from the list of reciprocating countries identified by the Minister under Section 13(1) of the Act. In this regard, the schedules to the Act identifies reciprocal countries as Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, United Kingdom and the Republic of Rwanda. In the present case, I note that the applicant instituted a claim against the respondents before the High Court of Justice, Business and Property Courts of England and Wales, Queens Bench Division, Commercial Court, on 5th November 2018 as shown in the annexure marked “DO-3”. Needless to say, England falls among the reciprocal countries listed under the Act.”
In allowing the Application, the court opined that:-
“…..From the above foregoing facts, I am satisfied that the applicant has proved that it has a foreign judgment in its favour and that the said judgment is capable of enforcement in the United Kingdom, and by operation of the Act, also capable of enforcement in Kenya.”
Where no reciprocal Agreement exists
If no reciprocal agreement exists, it may be enforced through common law provisions. The Applicant will file a suit at the High Court and provide a concise statement of the nature of the claim, the amount of the judgment debt and a certified copy of the foreign judgment. 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 e.g. where it has not been pronounced by a court of competent jurisdiction; where it has not been given on the merits of the case, where it has been obtained by fraud; amongst other reasons. If the foreign judgment creditor is successful after trial, the judgment creditor will have the benefit of a High Court judgment and the judgment creditor will be entitled to use the procedures of the Kenyan courts to enforce the foreign judgment, which will now be executed as a Kenyan judgment.
Conclusion
From our above discussion enforcement of the foreign judgment in Kenya is possible. However, it is important to acknowledge the constraints that the above requirements come with so as to facilitate smooth application for the desired outcome. Such constraints are majorly financial (Given the international aspect of the matter). One of the requirements is to obtain the requisite paper work from the foreign court as this is imperative to prove your claim in the foreign court. Lastly, a litigant ought to acquire services from an Advocate as the procedure involves cross-boundary relations between advocates to facilitate a smooth process.
