Accredo Ag & 3 others v Steffano Uccelli & another [2017] KECA 85 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the superior court had the jurisdiction to set aside the consent
- 2.Whether the 1st respondent had the locus standi to seek the orders sought in the application
- 3.Whether the review was merited
- 4.Whether the impugned ruling was based on unpleaded issues and if so, the effect thereof
Key legal issues
#Jurisdiction to enforce a foreign judgment from a non-reciprocating country
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
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.
Locus standi of a non-party to apply for review under Order 45 rule 1
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
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.
Whether review of the consent judgment was merited
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
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.
Whether the review orders were based on unpleaded issues
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
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
Appeal dismissed with costs to the respondents
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.
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.
Consequently, Order 45 recognizes that review may be sought either by; a non party or by a party to the proceedings.
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
given the fraud and misrepresentation perpetrated by the 1st and 3rd appellants, he was eligible to institute legal proceedings notwithstanding the rule in Harbottle.
If anything, shareholding was at the heart of the review application.
On the whole therefore, we are persuaded that this appeal lacks merit and the same is hereby dismissed with costs.
Issues in the judgment
#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
The judgment inconsistently dates the application for review, at one point as 20th November 2014 and later as 21st November 2014
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- In re Estate of Paul Wambua Nzole alias Wambua Nzole (Deceased) (Succession Cause E015 of 2021) [2026] KEMC 78 (KLR)[2026] KEMC 78 (KLR)7 Apr 2026applied
- Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)[2026] KEELC 905 (KLR)11 Feb 2026
Cite this brief
#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.