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CHRISTINE MUTHONI MUTHUNGU

JKC/B11/0644/2013

ASSIGNMENT; DISCUSS THE


CONDITIONS OF ENFORCEMENT OF
FOREIGN JUDGEMENTS

INTERNATIONAL TRADE LAW


CONDITIONS FOR ENFORCEMENT OF FOREIGN JUDGMENT

In law, the enforcement of foreign judgments is the recognition and enforcement in one
jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may
be recognized based on bilateral or multilateral treaties or understandings, or unilaterally
without an express international agreement.

In Kenya, the enforcement of foreign judgements by the local courts is governed by the
Foreign Judgments (Reciprocal Enforcement) Act cap 43 of the Laws of Kenya which is
An Act of Parliament to make new provision in Kenya for the enforcement of judgments
given in countries outside Kenya which accord reciprocal treatment to judgments given in
Kenya and for other purposes in connection therewith.

Under Section 3 of the Act 1it provides for the conditions that the foreign judgment must
met 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.


1
Section 3 of the reciprocal enforcement act cap43
Enforcement of judgements in countries not outlined in the order of foreign judgement

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.

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.
In the case of Williams Vs. Jones 14 LJ Ex 145 the judge stated that:
Where a court of competent jurisdiction had adjudicated a certain sum to be due
from one person to another a legal obligation arises to pay that sum, on which an
action of debt to enforce a judgement may be maintained .And taking this as the
principle it seems to follow that anything which negatives the existence of that legal
obligation or excuses the defendant from the performance of it must form a good
defence to the action. It must be open therefore to the defendant to show that the court
which pronounced the judgement had not the jurisdiction to pronounce it either
because they exceeded the jurisdiction given to them by the foreign law, or because
he the defendant was not subject to that jurisdiction.2

2
Williams Vs. Jones 14 LJ Ex 145
Finality and non-appealability of the court of origins 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.

In the case of Magunga General Stores - v- Pepco Distributors Limited (1987) 2 KAR 89,
this Court held inter alia that: An appellate court will not interfere with a trial Judges
exercise of his/her discretion on an application for summary Judgment unless the exercise
was wrong in principle or that the Judge acted wrongly on the facts.

Refusal to enforce a judgment

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.

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).

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 Kenya3.

3
Section 4 (4) of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya.
In the case of Christopher Sales & Carol Sales vs. The Republic of Uganda & Apollo K.
Kironde, against compensation to the first plaintiff in the sum of US $ 1,891,607.76 and US
$ 245,637.50 as compensation to the 2nd plaintiff be enforced in Uganda. The case was heard
in the United States and judgment was entered in the United States of America (USA) against
the Attorney General of Uganda. The plaintiff instituted a suit in Uganda to enforce and
execute the USA judgment in Uganda. During hearing, the respondent contended that the
USA foreign judgment was not only unenforceable but also un-registrable in Uganda by
virtue of the Foreign Judgments (Reciprocal Enforcement) Act (Cap 9, Laws of Uganda). It
was also contended that enforcement of the USA foreign judgment was time barred under the
Uganda Limitations Act4

Defence on the enforcement of a judgment.

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.

4
Christopher Sales & Carol Sales -v-The Republic of Uganda & Apollo K. Kironde
References

Kenyan constitution 2010

Reciprocal Enforcement Act cap 43

Kenya law reports