Kamlesh Mansukhlal Damji Pattni v Starwood Hotels & Resorts Worldwide In & 7 others [2016] KECA 261 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that English default judgments, served on a contractually appointed agent, can be registered and enforced in Kenya.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant, who was not a party to the suit below or the English suit, had locus standi to file the appeal
- 2.Whether the English default judgment, entered after service on an appointed process agent rather than by personal service, was a nullity not registrable in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act
- 3.Whether the learned Commissioner of Assize erred in granting the registration orders ex parte and in the manner the originating summons was instituted and determined
Key legal issues
#Locus standi of a non-party to appeal against registration of a foreign judgment
The appellant, who filed the appeal in his individual capacity without disclosing any connection to the corporate respondents or how the orders affected him, lacked the necessary locus standi
While a person affected by orders of the High Court may participate by filing an appeal, the appellant's Notice of Appeal did not disclose his relationship with any of the respondents. The respondents were all corporate bodies with power to sue or be sued, and no material was placed before the Court, even at the hearing, showing the appellant owned or was connected to them. Senior counsel for the 1st respondent's complaint that the appellant instituted the appeal without locus standi may well be right.
Validity of service through an appointed process agent and registrability of the resulting default judgment
Service on the irrevocably appointed agent was effective; the default judgment was not a nullity and was properly registrable, particularly as it was never set aside in England
The 2nd to 8th respondents, corporations, had in their agreements freely and irrevocably submitted to the exclusive jurisdiction of English courts and appointed an agent to receive process on their behalf. The agent was duly served but did not enter appearance, and none of the respondents applied to set aside the default judgment. Having chosen a particular mode of service, they could not avoid it. It was too late to challenge service of process in the original suit at the registration stage.
Interference with the discretionary orders of the High Court
The Commissioner of Assize was exercising a discretion when he granted the registration orders and no error in that exercise was detected to justify appellate interference
The Court reviewed the manner in which the ex parte application was brought and determined and found no error in the exercise of the Commissioner's discretion. An appellate court does not interfere with discretionary decisions merely because it might have reached a different conclusion; an error must be shown. None was demonstrated here.
Legal principles established
#- Where parties have irrevocably agreed in writing to submit to a foreign jurisdiction and appointed an agent for service of process, service on that agent is valid service and a default judgment so obtained is registrable in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act
- An appeal may only be brought by a person who discloses how he is connected to the respondents or how the orders of the High Court affect him; locus standi requires material demonstrating such connection
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C. No. 1305 of 2001 (OS)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over a decision of the High Court (Foreign Judgments (Reciprocal Enforcement) Act, Cap 43 registration proceedings)
Relief refused
#Setting aside the High Court orders registering the English judgment
The respondents had contractually submitted to English jurisdiction and appointed a process agent; the judgment remained properly on record and no error in the exercise of the Commissioner's discretion was detected
Appellant's challenge to service through an appointed agent
Corporations may be served in accordance with agreed modes; the issue was raised too late and the judgment was not set aside in England
Costs
Appeal dismissed with costs to the 1st respondent who participated and opposed the appeal
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal has no merit and we dismiss it with costs to the 1st respondent who participated and opposed this appeal.
That agent was duly served with process but did not enter appearance to the claim. Even after judgement was entered in default none of the said respondents moved the English court that had entered judgement to have it set aside and the judgment remained properly on record and the 1st respondent was entitled to move the High Court of Kenya for registration of that judgment in Kenya.
The appellant, acting in his individual capacity filed a Notice of Appeal and the Appeal without disclosing in any way how he is connected to the respondents or how the orders of the High Court affect him.
We think that it is rather late in the day for the issue of service of process in the original suit to be taken here.
Issues in the judgment
#The judgment inconsistently names the statute governing registration, calling it both the 'Foreign Judgments (Reciprocal Enforcement) Act' and the 'Foreign Judgements (Reciprocal Jurisdiction) Act'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kamlesh Mansukhlal Damji Pattni v Starwood Hotels & Resorts Worldwide In & 7 others [2016] KECA 261 (KLR)", Case Analysis (2016). Civil Appeal No. 324 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/261/eng@2016-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.