Enforcement of Money Judgments in Kenya by B M Musau & Company, Advocates
I. PRESENT ATTITUDE TOWARD ENFORCEMENT OF FOREIGN MONEY JUDGMENTS
I. PRESENT ATTITUDE TOWARD ENFORCEMENT OF FOREIGN MONEY JUDGMENTS
A. Describe the receptiveness of your government (including courts) toward enforcement of foreign money judgments.
Courts in Kenya will enforce foreign money judgments in two ways: by registration and by an action where the law allows. Money recovered in enforcement of foreign judgments is usually in foreign currency. Conversion of money recovered in Kenya into foreign currency requires approval by the Central Bank of Kenya. The approval process can take a long time.
B. Briefly describe recent illustrative attempts, whether successful or unsuccessful, to enforce a foreign money judgment in your country, particularly with regard to enforcement of any judgments from United States courts.
There are no separate registers for applications to enforce a foreign money judgment. It is therefore difficult to give any statistics. There are however ongoing attempts to register such judgments following the environment of reform in the judiciary.
C. Describe any proposed legislation or other governmental action in your country that could significantly affect the enforcement of foreign money judgments.
At the time of answering this questionnaire there is no proposed legislation on enforcement of foreign money judgments.
II. PROCEDURE TO ENFORCE A FOREIGN MONEY JUDGMENT
A. General Summary of Procedure
1. Briefly summarize the procedure and expected length of time necessary to enforce a foreign money judgment if a treaty provides for enforcement of judgments from the country of origin.
A party seeking to enforce a foreign money judgment makes an application ex parte supported by an affidavit. The application is heard and a ruling date is given by the court. The ruling is generally issued within 2 months.
The procedure applies to money judgments issued in competent courts in Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and the Republic of Rwanda as per the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order (the Order) made pursuant to section 13 of the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya (the Act).
Other countries can be added in the list on the basis of reciprocity but until then the list above prevails.
2. Briefly summarize the procedure and expected length of time necessary to enforce a foreign money judgment if no treaty provides for enforcement of judgments from the country of origin.
Enforcement of judgments of countries other than those set out in the Order may be enforced by an action under the ordinary rules of the court. The judgment-debtor must be served. If the judgment-debtor fails to enter appearance an application for summary judgment can be made. The judgment-debtor can, for good cause to be shown, apply to court to set aside the summary judgment. When the summary judgment is set aside the action may be set down for hearing and subsequent judgment on the action is issued which process can take up to two years.
B. Detailed Discussion of Procedure
1. Indicate the courts in your country that are competent (i.e., have jurisdiction) to grant enforcement of a judgment.
The court with jurisdiction to grant an order of enforcement of a judgment is the High Court of Kenya.
2. Describe any requirements regarding translation and authentication of the documents evidencing the original judgment.
Documents in any other language other than English must be translated into English. Such translation must be authenticated by a signature, stamp or seal of a judicial officer.
Article 7 (2) of the Constitution of Kenya, 2010 provides that the official languages shall be English and Kiswahili. Kiswahili is yet to be used as an official language.
3. Indicate whether jurisdiction over the judgment debtor must be obtained by your courts in the enforcement action.
The judgment debtor should be served with any process in the action otherwise the court may decline to issue any adverse orders against the judgment debtor.
There are documents which require the leave of the court to serve the judgment debtor out of the jurisdiction of the court such as summons to enter appearance in an enforcement action. On the other hand notice of registration of judgment may be made without the leave of the court.
4. If the original judgment is in a foreign currency, describe whether the judgment need be converted into local currency. [Ed. Note: Indicate how the conversion should be calculated (e.g., exchange rate when judgment awarded, when enforced, or at another time?)]
It is not mandatory that a judgment in a foreign currency be converted into local currency. If payment is being made to the judgment-creditor personally or his personal representative then payment can be made in foreign currency. However, payment in court must be in local currency. Similarly, registration of foreign judgments is done in local currency.
Conversion is calculated on the exchange rate at the rate subsisting at the time of payment or at the time of the registration, as the case may be.
5. Indicate whether the judgment creditor can receive interest on the original judgment amount regardless of whether the original judgment amount included interest.
A judgment creditor can receive interest on the original judgment amount at the present rate of 12%.
6. Indicate whether the successful judgment creditor is entitled to reimbursement of its attorneys fees or court costs incurred in bringing the enforcement proceeding.
A successful judgment creditor is entitled to reimbursement of the costs of the action. However the reimbursement is subject to a deduction of advocate and client fees.
7. Describe the conditions under which the losing party may appeal your court’s decision whether or not to enforce a judgment.
There are no conditions attached to appeal on registration or enforcement of a foreign judgment. An appeal to the Court of Appeal lies as of right.
8. Describe any other procedures which could seriously affect the enforcement action.
At the time of this project, there are no drastic procedures in place in enforcement actions.
III. REQUIREMENTS FOR ENFORCEMENT OF A FOREIGN MONEY JUDGMENT
A. General Summary of Requirements
1. Assuming the proper procedure is followed as set out in Section II, briefly summarize the requirements which must be met to enforce a foreign money judgment if a treaty provides for enforcement of judgments from the country of origin.
Section 3 of the Act provides for the conditions that the foreign judgment must meet in order for it to be capable of registration and enforcement. The judgment must be:
(a) of a superior court;
(b) for a lump sum;
(c) final and conclusive between the parties;
(d) brought in proceedings in which the judgment debtor submitted to the jurisdiction of the foreign court, was habitually resident in that country or was conducting business there;
(e) in claims in contract, that the contract was wholly or mainly to be performed in that country;
(f) in claims for damages for physical injury or death, that the circumstances occurred in that country; and
(g) given within 6 years before the date of the application to enforce.
The judgment must not be:
(a) for taxes, fines or penalties;
(b) by way of exemplary, punitive or multiple damages.
2. Assuming the proper procedure is followed as set out in Section II, briefly summarize the requirements which must be met to enforce a foreign money judgment if no treaty provides for enforcement of judgments from the country of origin.
There are no requirements set out in the Act for the enforcement of judgments from countries not outlined in the Order. However, the procedure in England in such applications will be followed subject to such modifications as would be necessary to suit the circumstances in Kenya (section 3 (2) of the Judicature Act, Chapter 8 of the Laws of Kenya.
The requirements in England are that the judgment debtor must either been subject to the jurisdiction of the foreign court either by being a resident in that country, carrying on business there, or have submitted to that jurisdiction.
B. Detailed Discussion of Requirements
1. Describe any requirements of your country with regard to the jurisdiction (i.e., competence) of the court of origin over the parties and subject matter of the original action. [Ed. Note: Indicate whether the jurisdiction of the court of origin must have been based on a ground which can be exercised by a court of your country. Can the defendant submit to jurisdiction or waive rights to protest jurisdiction?]
The judgment debtor must have been subject to the jurisdiction of the foreign court either by being a resident in that country or carrying of business there, or by submitting to the jurisdiction of the court.
Where the enforcement is by action the same requirements apply.
2. Describe any requirements of your country with regard to notice to the defendant in the original action. [Ed. Note: Must the court of origin have followed your country’s service of process rules? Could service have been by mail or publication?]
A party cannot be condemned unheard and therefore service of process on the judgment debtor is paramount.
3. Describe any requirements of your country with regard to finality and non-appealability of the court of origin’s judgment.
An appeal can be preferred against any foreign judgment. However, on application by the judgment debtor the registration of the foreign judgment can be stayed pending the appeal.
4. Describe the position of your country with regard to refusal to enforce a judgment on grounds of public policy, particularly with respect to whether your courts will refuse to enforce a judgment if the original claim could not have been brought under the laws of your country.
If a foreign judgment is against the public policy in Kenya it will not be registered or enforced. A foreign judgment is against public policy if it is inter alia against the Constitution of Kenya, 2010 and any written law.
5. Describe any requirements of your country with regard to showing reciprocity between the court of origin and your country.
The Act does not stipulate requirements for reciprocity between any court of origin and Kenya. Reciprocity has to be shown for the country to be included in the list in the Order.
6. Indicate whether the courts of your country will review the merits of the case before granting enforcement.
The High Court will generally not review the merits of the case before granting an enforcement order due to the principle of res judicata. However, in an application to set aside the registration of a foreign judgment, the High Court may consider any issues between the parties (the judgment creditor and the judgment debtor).
7. Describe whether the courts of your country will examine if the court of origin applied the same rules of law which a court in your country would have followed had it heard the case originally (i.e., the proper choice of law).
The High Court will not examine the rules of law followed during the hearing in the country of origin unless such rules are against the public policy in Kenya.
8. Describe whether enforcement of a judgment will be denied if the underlying cause of action is barred under your country’s statute of limitations.
The rules of limitation are procedural. Consequently, the rules of limitation of the country of origin will apply.
Any action, for registration or enforcement, must be brought within 12 years of the date of the judgment as per section 4 (4) of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya.
9. Describe any other requirements or defenses which could prevent the enforcement of a judgment. [Ed. Note: For example: fraud in the original action; a prior inconsistent judgment; the original court was an inconvenient forum; etc.]
A foreign judgment registered under the Act may be set aside on the following grounds:
(a) that there had been a prior conclusive and final judgment by a competent court;
(b) that the judgment was obtained by fraud which was not within the knowledge of the judgment debtor upon exercise of due diligence;
(c) that the judgment debtor is entitled to diplomatic or consular immunity in Kenya.
The same grounds stand in an action to enforce a foreign judgment.
I am a Kenyan Advocate and the Managing Partner of B M Musau & Co., Advocates, a position I have held since 1999. My work encompasses regulatory reforms, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment and other general corporate areas
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