Enforcing Foreign Judgments in Kenya: A Practical Guide
Are you a foreigner looking to enforce a judgment in Kenya? Or are you a Kenyan business dealing with international contracts and wondering how foreign laws apply? This article will guide you through the process of enforcing foreign judgments in Kenya, including how to seek legal help and what to expect.
The Legal Framework
The enforcement of foreign judgments in Kenya is governed by the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43 of the Laws of Kenya). This Act applies to judgments given in countries outside Kenya that accord reciprocal treatment to judgments given in Kenya. The designated countries under this Act include Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom, and the Republic of Rwanda.
Registration and Enforcement
To enforce a foreign judgment, a judgment creditor may apply to the High Court to have the judgment registered. The application must be accompanied by a certified copy of the foreign judgment, and the court may order the judgment to be registered if satisfied that the judgment is final and conclusive. The registered judgment has the same force and effect as a judgment of the High Court entered at the date of registration.
Exceptions and Limitations
The Act excludes certain matters from its application, including matrimonial causes, matters determining rights in property arising out of matrimonial relationships, proceedings relating to the custody or guardianship of children, and matters relating to social security or public assistance.
Common Law Principles
In the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common law. The Court of Appeal has laid down jurisprudence in the case of Jayesh Hasmukh Shah v Navin Haria & Another (2016) eKLR, stating that a foreign judgment would be enforceable as a claim in common law.
Procedure for Enforcement
The procedure for enforcement of a foreign judgment involves filing a claim at the High Court, 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.
Challenges and Defences
The defendant may challenge the validity of the foreign judgment under the grounds set out in Section 9 of the Civil Procedure Act. The court may also consider whether the foreign court had jurisdiction, whether the judgment was given on the merits of the case, and whether the proceedings were opposed to natural justice.
Conclusion
Enforcing foreign judgments in Kenya can be a complex process, but with the right guidance, it’s possible to navigate the legal system successfully. If you’re dealing with international contracts or need to enforce a foreign judgment, it’s essential to seek legal advice from a qualified advocate (attorney) who can help you understand the laws and procedures involved.
Remember: The above is not specific legal advice for you. Always consult a lawyer to determine the best option for your specific situation
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