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Court of AppealDismissedCivil Appeal No. 36 of 2015

Accredo Ag & 3 others v Steffano Uccelli & another [2017] KECA 85 (KLR)

Court of Appeal of Kenya
15 December 2017
7,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that foreign judgments from countries like Italy can still be enforced in Kenya through common law, and fraud can unravel consent judgments.

What this practically means

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Executive summary

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This was a first appeal against a ruling of Chitembwe J. (High Court, Malindi, HCCC 118 of 2009, 30th April 2015) which allowed an application by the 1st respondent to review and set aside a consent judgment and decree recorded on 21st January 2010, by which the Milan judgment of 14th December 2001 was to be enforced against Salama Beach Hotel Limited and its shareholding transferred to the Langers. The Court of Appeal condensed 26 grounds into four issues. On jurisdiction, it held that although Italy is not a reciprocating country under the Foreign Judgments (Reciprocal Enforcement) Act and the Milan judgment was unenforceable under that Act, it remained enforceable at common law by plaint, so both jurisdictional attacks failed. On locus standi, it held that Order 45 rule 1 permits a non-party who considers himself aggrieved to apply for review, and that the 1st respondent, a minority shareholder, could sue notwithstanding the rule in Foss v Harbottle because fraud on a minority is an exception to that rule. On the merits, the court found the evidence that the Milan judgment was interlocutory and later unsettled was never controverted, so the consent founded on it was procured by fraud and the review was merited. On unpleaded issues, it held shareholding was central to the review application, so the reversal of the share transfer orders was within the pleadings. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the superior court had the jurisdiction to set aside the consent
  2. 2.Whether the 1st respondent had the locus standi to seek the orders sought in the application
  3. 3.Whether the review was merited
  4. 4.Whether the impugned ruling was based on unpleaded issues and if so, the effect thereof

Key legal issues

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01

Jurisdiction to enforce a foreign judgment from a non-reciprocating country

Holding

Italy is not a designated reciprocating country under the Foreign Judgments (Reciprocal Enforcement) Act, so the Milan judgment is unenforceable under that Act; however, it is enforceable under common law by plaint, and the High Court had jurisdiction both over HCCC 118 of 2009 and the review application

Reasoning

The Act only covers judgments from designated courts of reciprocating countries listed under section 13. Italy is not listed. Following Jayesh Hasmukh Shah v Navin Haria, such a judgment is enforceable under common law via a plaint, subject to section 9 of the Civil Procedure Act. Neither attack on jurisdiction - failure to use the registration procedure, or non-reciprocity - succeeded, since the suit was properly instituted at common law.

p. 7
02

Locus standi of a non-party to apply for review under Order 45 rule 1

Holding

A non-party who considers himself aggrieved may apply for review under Order 45 rule 1(1); the proper plaintiff rule did not bar the 1st respondent because fraud on a minority shareholder is an exception to the rule in Foss v Harbottle

Reasoning

Order 45 has two limbs: sub-rule (1) allows 'any person considering himself aggrieved' to seek review, which includes non-parties, provided the applicant proves the grounds and that the decision affects his cognizable rights. The proper plaintiff rule bars futile minority actions but admits exceptions per Edwards v Halliwell, including fraud on a minority. The uncontroverted evidence established fraud in procuring the consent, entitling the minority shareholder respondent to apply.

p. 8
03

Whether review of the consent judgment was merited

Holding

The review was merited: the Milan judgment relied upon was not a final enforceable decree, the appellants never controverted the evidence of fraud, and a consent judgment founded on fraud and mistake can be set aside

Reasoning

The Italian counsel's information showed the 14th December 2001 order was a provisionally enforceable interlocutory injunction, later contested, with the decretal sum still uncertain. The appellants never controverted these claims. The trial judge's finding that the consent was founded on fraud and misrepresentation by the 1st and 3rd appellants attracted no interference on appeal, since an appellate court will not disturb findings of fact based on evidence.

p. 11
04

Whether the review orders were based on unpleaded issues

Holding

The shareholding orders were within the pleadings: shareholding was central to the review application, and the decree under review had itself altered shareholding, so its reversal was properly within the ambit of the review

Reasoning

Although pleadings bind the court, shareholding was at the heart of the review application: the 1st respondent complained of unlawful divestiture of shares and deprivation of property. Since the decree under review had altered the company's shareholding, reversing those orders in review did not introduce unpleaded issues nor amount to a final determination at an interlocutory stage.

p. 12

Legal principles established

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  • A foreign judgment from a non-reciprocating country, though unenforceable under the Foreign Judgments (Reciprocal Enforcement) Act, is enforceable in Kenya under common law by filing a plaint before the High Court, subject to Section 9 of the Civil Procedure Act
  • Order 45 rule 1 of the Civil Procedure Rules accords locus standi in review applications to both parties and non-parties: an application may be brought by 'any person considering himself aggrieved' or by 'a party who is not appealing from the decree or order', provided the applicant proves the decision affects his cognizable rights
  • The proper plaintiff rule in Foss v Harbottle is subject to exceptions, including where fraud has been perpetrated by the majority against a minority, in which case a minority shareholder may sue notwithstanding the rule

Court orders

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  1. 1.Appeal dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
Martha Karambu Koome
M. K. KoomeJA
Currently serving
majority
On appeal from
High Court of Kenya at Malindi
H.C.C.C No. 118 of 2009
Jurisdiction invoked
First appeal under Article 164 of the Constitution (appellate jurisdiction of the Court of Appeal); the suit below was instituted under common law for enforcement of a foreign judgment from a non-reciprocating country

Relief refused

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Setting aside of the High Court ruling of 30th April 2015 and reinstatement of the consent judgment and decree

The appeal lacked merit; the trial court had jurisdiction, the 1st respondent had locus standi, review was merited on the ground of fraud, and the shareholding orders fell within the pleadings

p. 12

Costs

Appeal dismissed with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

To this court therefore, a judgment from a non reciprocating country can still find local enforcement under Common law. This is achieved by filling a Plaint before the High Court; subject though, to the provisions of Section 9 of the Civil Procedure Act.
p. 7Enforcement of foreign judgments from non-reciprocating countries
Consequently, Order 45 recognizes that review may be sought either by; a non party or by a party to the proceedings.
p. 8Locus standi for review applications
at all material times to the High court proceedings, there was no order or decree from the court of Milan in favour of Viaggi capable of enforcement
p. 11Effect of uncontroverted evidence of a non-existent foreign judgment
given the fraud and misrepresentation perpetrated by the 1st and 3rd appellants, he was eligible to institute legal proceedings notwithstanding the rule in Harbottle.
p. 11Exceptions to the proper plaintiff rule
If anything, shareholding was at the heart of the review application.
p. 12Pleadings and scope of review orders
On the whole therefore, we are persuaded that this appeal lacks merit and the same is hereby dismissed with costs.
p. 12Final orders / disposition

Issues in the judgment

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minor

The judgment text is internally garbled in places, with sentences apparently corrupted mid-passage, e.g. the 1st respondent's application submissions are interrupted by inserted text

minor

The judgment inconsistently dates the application for review, at one point as 20th November 2014 and later as 21st November 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Accredo Ag & 3 others v Steffano Uccelli & another [2017] KECA 85 (KLR)", Case Analysis (2017). Civil Appeal No. 36 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/85/eng@2017-12-15

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