Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 147 of 2009· [2016] KECA 762 (KLR)

Shah v Haria & another (Civil Appeal 147 of 2009) [2016] KECA 762 (KLR)

Court of Appeal of Kenya
26 February 2016
EGE. M. GithinjiJMJ. MohammedJOJ. Otieno-Odek
5,598 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal confirmed you can enforce a foreign court judgment in Kenya even from countries without a reciprocity treaty, but defendants get their day in court.

What this practically means

#

Executive summary

#
This Court of Appeal judgment (Githinji, Mohammed and Otieno-Odek, JJ.A.) concerns the enforceability in Kenya of a money judgment from a non-designated country. The appellant obtained judgment in the Federal Supreme Court of Ethiopia against the respondents for the equivalent of US$250,000 and, Ethiopia not being a designated country under the Foreign Judgments (Reciprocal Enforcement) Act, filed a plaint at the High Court seeking the Birr equivalent of the debt. He applied for summary judgment, which Sitati, J. dismissed on the ground that triable issues (reciprocity, competence of the Ethiopian court, alleged fraud, corporate personality) required a full trial. The central question framed was what Kenyan law and procedure govern enforcement of foreign judgments from non-designated countries. The Court held that in the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a common law claim: the creditor files a plaint with a certified copy of the judgment, the defendant may raise the defences in Section 9 of the Civil Procedure Act, and summary judgment is available unless a real prospect of establishing such a ground exists. The High Court, under Section 3 of the Judicature Act and Article 165(3) of the Constitution, has jurisdiction to determine such issues and will not re-examine the merits of a competent foreign court's judgment. The Court affirmed the trial court's ruling, directed a full trial applying the common law principles as read with Section 9, and dismissed the appeal with no order as to costs, the respondents having not appeared. This ruling now binds lower courts on the common law route for enforcing non-designated foreign judgments.

Key legal issues

#
01

Enforceability in Kenya of foreign judgments from non-designated countries

Holding

Such judgments are enforceable at common law by filing a plaint claiming the judgment debt, subject to the defences in Section 9 of the Civil Procedure Act; the Foreign Judgments (Reciprocal Enforcement) Act applies only to designated countries.

Reasoning

The Act governs registration of judgments from designated countries only. Ethiopia is not designated, so the Act and reciprocity-based cases are irrelevant. Applying the common law principles elaborated in Adams v Cape Industrials and the Judicature Act's reception of English common law, a foreign judgment for a fixed sum creates a legal obligation enforceable as a debt, provided the foreign court had jurisdiction under private international law rules, the judgment is final and conclusive, and no Section 9 defence is established.

p. 5
02

Procedure for enforcing a non-designated foreign judgment and availability of summary judgment

Holding

The creditor files a plaint with a certified copy of the judgment; the defendant may raise Section 9 defences; summary judgment is available unless the defendant shows a real prospect of establishing such a ground at trial.

Reasoning

The court set out a structured procedure: a plaint supported by verifying affidavit, list of witnesses and documents with the certified foreign judgment exhibited; Section 9 of the Civil Procedure Act provides the exclusive grounds for challenge (incompetent court, not on merits, incorrect international law or refusal to recognize Kenyan law, natural justice, fraud, breach of Kenyan law). Summary judgment under the summary procedure rules is available unless a triable issue under Section 9 is raised.

p. 6
03

Whether the trial judge erred in dismissing the summary judgment application

Holding

No error; the defence raised triable issues on competence of the Ethiopian court and alleged fraud, so the matter must go to full trial.

Reasoning

An appellate court will not interfere with a trial judge's discretion unless it was exercised on a wrong principle or facts. The defence raised issues germane to whether the Ethiopian judgment is enforceable, including fraud; while particulars of fraud were not pleaded, the legal effect of that failure is a matter for the trial court. Where bona fide triable issues exist, the defendant must be given unconditional leave to defend.

p. 9
04

Examination of the merits of a foreign judgment

Holding

A foreign judgment having jurisdiction over the parties and subject matter cannot be impeached on the merits, only on grounds of substantial justice.

Reasoning

Relying on Pemberton v Hughes and Goddard v Gray, the court adopted the common law rule that where a foreign court was competent and no substantial justice was offended, the enforcing court looks only to finality and competence; a foreign judgment is not impeachable merely because it is manifestly wrong. Mere procedural irregularity under the foreign court's own rules is no defence.

p. 6

Legal principles established

#
  • In the absence of a reciprocal enforcement arrangement, a foreign judgment from a non-designated country is enforceable in Kenya as a claim in common law.
  • The High Court of Kenya has jurisdiction to hear and determine any issue relating to enforceability of foreign judgments from non-designated countries.
  • Once a foreign court is shown to have had jurisdiction, the Kenyan court will not re-examine the merits of the foreign judgment.
  • An action for enforcement of a foreign judgment in Kenya must be brought within 12 years of the date of that judgment.

Court orders

#
  1. 1.The appeal is dismissed with no order as to costs as the respondent did not appear at the hearing
  2. 2.The Ruling of the trial court dismissing the appellant's application for summary judgment is upheld
  3. 3.The suit between the parties should proceed to full trial
  4. 4.The common law principles on enforcement of foreign judgments as read with Section 9 of the Civil Procedure Act should be applied in arriving at the final determination of the issues in the suit

Authorities

#

Legislation

  • Foreign Judgments (Reciprocal Enforcement) ActCap 43, Sections 3(1)(a), 17(1), 18
  • Civil Procedure ActCap 21, Sections 7, 9
  • Judicature ActCap 8, Sections 3, 3(1)
  • Limitation of Actions ActCap 22, Section 4(4)
  • Kenya Companies ActCap 486
  • Civil Procedure RulesOrder XXXV Rule 1; Order 36
  • Constitution of KenyaArticle 165(3)
  • Foreign Judgments (Reciprocal Enforcement) Act (Uganda)Cap 9
  • Limitations Act (Uganda)

Cases cited (19)

  • Mohamedali Mulla Ebramji -v- Alibhai Jivanji Mamuji
    (1917) Vol. VII EALR 89
  • Nagina Singh t/a Tarlochan Singh s/o Boor Singh
    (1936) Vol. XVII KLR 82
  • Postal Corporation of Kenya -v- Inamdar & 2 Others
    (2004) KLR 359
  • Keshavji Ramji Ladha -v- Bank of Credit and Commerce International – SA (BCCI)
    Civil Appeal No. 44 of 2004
  • Intalframe Ltd -v- Mediterranean Shipping Company
    (1986) KLR
  • Adams & Others – v- Cape Industrials PLC
    (1990) Ch. 433
  • Williams – v- Jones
    (1845) 13 M. & W. 628, 633
  • Pemberton –v- Hughes
    (1899) 1 Ch. 781
  • Emanuel – v- Symon
    (1908) 1 KB 302
  • Goddard – v- Gray
    L.R. 6 Q.B. 139
  • Christopher Sales & Another -v- The Attorney General
    Uganda HCCC No. 91 of 2011
  • Hilton –v- Guyot
    159 US 113 (1895)
  • Osodo - v- Barclays Bank International Limited
    (1981) KLR 30
  • Magunga General Stores - v- Pepco Distributors Limited
    (1987) 2 KAR 89
  • Nairobi Golf Hotels (Kenya) Limited
    Civil Appeal No. 5 of 1997 (UR)
  • Attorney General versus Equip Agencies Ltd
    [2006] eKLR
  • Commercial Advertising and General Agencies Ltd. -v- Qureishi
    (1985) KLR 458
  • B. Gupta -v- Continental Builders Limited
    C.A. Civil Appeal No. 33 of 1977
  • Mutsonga vs. Nyati
    (1984) KLR 425
On appeal from
High Court of Kenya at Nairobi
H.C.C.C No. 488 of 2007
Jurisdiction invoked
Section 3 of the Judicature Act (Cap 8) and Article 165(3) of the Constitution as the source of the High Court's jurisdiction; appellate jurisdiction of the Court of Appeal over interlocutory appeals

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Shah v Haria & another (Civil Appeal 147 of 2009) [2016] KECA 762 (KLR)", Case Analysis (2016). Civil Appeal 147 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/762/eng@2016-02-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.