Enforcing a Foreign Judgment Against a Kenyan Debtor

Two routes, depending on the country

Kenya's Foreign Judgments (Reciprocal Enforcement) Act provides a registration procedure for judgments given by designated courts in countries with which Kenya has reciprocal arrangements. Where the country is not designated, the registration procedure is not available and the creditor relies on the common law route instead. The first question for any creditor holding a foreign judgment is therefore which country, and which court, gave it.

Reciprocating countries

The countries whose judgments may be registered are designated under the Act. Published legal commentary lists them as Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda. Designation is made by order and can change, so the current position should be confirmed against the latest order before an application is prepared.

Which judgments qualify

Under section 3, the Act applies to judgments and orders of designated courts in civil proceedings under which a sum of money is payable, among other specified orders. It does not extend to judgments concerning taxes, fines, maintenance, matrimonial and custody matters, succession or bankruptcy, and certain other excluded categories. An ordinary commercial money judgment against a trading company will usually fall within its scope.

The six-year limit

Section 5(1) allows the judgment creditor to apply to the High Court to register the judgment within six years of the date of the judgment or, where there has been an appeal, of the date of the last judgment. A creditor who allows that period to pass loses the benefit of the registration procedure, so older foreign judgments should be reviewed without delay.

Challenges to a registered judgment

Once registered, the judgment can be enforced in Kenya in the same way as a judgment of the High Court. The judgment debtor may, however, apply to set the registration aside. Section 10 lists the permitted grounds, which include:

• The original court did not have jurisdiction over the debtor.
• The debtor was not duly served with the proceedings or did not receive notice in time to defend.
• The judgment was obtained by fraud.
• The judgment has been reversed or set aside on appeal.
• Enforcement would be manifestly contrary to public policy in Kenya.

Judgments from other countries

Where the judgment comes from a country that is not designated, the creditor generally brings a new action in Kenya in which the foreign judgment is itself the basis of the claim, treated as a debt owed by the debtor. For that route to succeed the foreign judgment should be final and conclusive, for a definite sum of money, and given by a court that had jurisdiction over the debtor. The debtor may raise defences, so the claim should be prepared with the same care as any other contested claim.

Preparing the file

Whichever route applies, the following will normally be needed:

• A certified copy of the judgment and of any appeal decision.
• Evidence that the debtor was served with the original proceedings.
• Evidence of the amount that remains unpaid, including any payments received.
• Certified English translations of any documents in another language.
• The debtor's correct legal name and registration details in Kenya.

Arbitration awards are different

An arbitral award is not a court judgment and follows a separate regime. Kenya is a party to the New York Convention, and foreign awards are recognised and enforced under section 36 of the Arbitration Act, 1995. Creditors whose contracts contain an arbitration clause should read our guide to cross-border debt recovery.

Frequently asked questions