Enforcement of Foreign Judgments in Kenya

The enforcement of foreign judgments in Kenya is governed by a combination of statutes, treaties, and common law principles. This article provides a comprehensive overview of the legal framework, procedures, challenges, and enforcement mechanisms involved in enforcing foreign judgments in Kenya.

Legal Framework

Statutory Provisions: The primary statute governing the enforcement of foreign judgments in Kenya is the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya). This Act provides for the enforcement of judgments given in countries outside Kenya that accord reciprocal treatment to judgments given in Kenya. The Act defines key terms such as “judgment creditor” and “judgment debtor” and outlines the process for registering and enforcing foreign judgments in Kenya.

Treaties 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. However, it excludes decisions related to family law, bankruptcy, social security, and other specified matters.

Common Law In the absence of a reciprocal enforcement arrangement, foreign judgments can be enforced in Kenya under common law principles. These principles include the requirement that the foreign court must have had jurisdiction over the defendant and that the judgment must be final for enforcement purposes.

General Requirements for Enforcement

Reciprocity: The foreign judgment must originate from a country with a reciprocal enforcement agreement with Kenya. This means that the foreign country must also recognize and enforce Kenyan judgments.

Finality and Conclusiveness: The judgment must be final and conclusive in the jurisdiction where it was issued. Interim or interlocutory judgments are not enforceable.

Jurisdiction of the Foreign Court: The foreign court must have had proper jurisdiction over the parties and the subject matter according to Kenyan private international law principles. This includes ensuring that the defendant was properly served and had an opportunity to present their case.

Non-Contravention of Public Policy: The judgment must not contravene Kenyan public policy. For example, judgments obtained through fraud or those that are contrary to Kenyan laws and values may not be enforced.

No Contrary Judgment: There must be no conflicting judgment from a Kenyan court on the same matter. If a Kenyan court has already ruled on the issue, the foreign judgment cannot be enforced.

Proper Service: The defendant must have been duly served with the court processes in the foreign jurisdiction. This ensures that the defendant was aware of the proceedings and had an opportunity to defend themselves.

Compliance with Procedural Requirements: The application for enforcement must comply with the procedural requirements set out in the Foreign Judgments (Reciprocal Enforcement) Act and other relevant laws. This includes providing certified copies of the foreign judgment and evidence that it is final and conclusive.

Time Limit: The application for enforcement must be made within six years from the date of the foreign judgment. This ensures that judgments are enforced within a reasonable time frame.

Procedure for Enforcement

Application for Registration: A judgment creditor may apply to the High Court of Kenya to register a foreign judgment. The application can be made ex-parte, providing a concise statement of the nature of the claim, claiming the amount of the judgment debt, supported by a verifying affidavit, list of witnesses, and bundle of documents intended to be relied upon. A certified copy of the foreign judgment should also be attached. If the High Court is satisfied with the application, it will order the judgment to be registered.

Notice to Judgment Debtor: Once the judgment is registered, the judgment creditor must serve a notice of the registration on the judgment debtor. If the court does not grant the application for registration, it may direct that summons be issued to the judgment debtor, allowing them to participate in the application hearing.

Grounds for Setting Aside Registration: The judgment debtor can apply to have the registration set aside on various grounds, such as lack of jurisdiction by the foreign court, fraud, or public policy considerations. If the High Court is satisfied that any of these grounds have been established, it will set aside the registration.

Enforcement of Registered Judgment: Once registered, a foreign judgment has the same force and effect as a judgment of the High Court of Kenya and can be enforced in the same manner as a domestic judgment.

Challenges in Enforcement

Lack of Reciprocal Agreements: Kenya has reciprocal enforcement agreements with only a few countries, limiting the scope of automatic recognition. This means that judgments from countries without such agreements may face additional hurdles for enforcement.

Prolonged Court Processes: Court proceedings in Kenya may experience delays, affecting the timely enforcement of judgments. The judicial system can be slow, and cases may take a long time to resolve.

Public Policy Constraints: Broad interpretations of public policy may lead to refusal of enforcement. If a judgment is deemed to contravene Kenyan public policy, it may not be enforced, even if it meets other requirements.

Lack of Harmonized Laws: The absence of a uniform legal framework for enforcement creates uncertainties in some cases. Different interpretations and applications of the law can lead to inconsistent outcomes.

Costs and Expenses: The process of enforcing a foreign judgment can be costly, involving legal fees, court fees, and other expenses. These costs can be a significant burden for judgment creditors.

Ways of Enforcing Registered Judgments

Once a foreign judgment is registered in Kenya, it can be enforced like a domestic judgment as provided under the Civil Procedure Act and the Civil Procedure Rules Order 22. The following are standard methods of execution of decrees than cab ordered by the court on application by a decree-holder:-

by delivery of any property specifically decreed;
by attachment and sale, or by sale without attachment, of any property;
by attachment of debts;
by arrest and detention in prison of any person;
by appointing a receiver; or
in such other manner as the nature of the relief granted may require.

Conclusion

The enforcement of foreign judgments in Kenya is a well-defined process governed by statutory provisions, treaties, and common law principles. The Foreign Judgments (Reciprocal Enforcement) Act provides a clear framework for registering and enforcing foreign judgments, ensuring that judgments from reciprocating countries are treated with the same respect and enforceability as domestic judgments. However, the process also includes safeguards to protect the rights of judgment debtors and ensure that only valid and fair judgments are enforced.

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