W K, M W K (Both suing as the Administrators of the Estate of Dr. W K) & another v British Airways Travel Insurance & another [2017] KECA 393 (KLR)
The bottom line
#The Court of Appeal dismissed a family's insurance claim, confirming Kenyan courts cannot hear contract disputes against foreign companies without a clear Kenyan connection.
What this practically means
#Executive summary
#Key legal issues
#Whether entry of appearance and an application to set aside a default judgment estopped a defendant from challenging the court's jurisdiction
No estoppel arose. Although entry of unconditional appearance ordinarily submits a defendant to the court's jurisdiction, the 2nd respondent had no office in Kenya, denied knowledge of the party served, and raised the jurisdictional objection immediately after entering appearance, so the objection was properly before the court.
The court distinguished the KANTI case, where the respondent had an office in Nairobi and was properly served there. Here the 2nd respondent had no place of business in Kenya and no authorised agent had accepted service. The ruling by Mwera, J. granting set-aside did not pronounce on jurisdiction, expressly deferring it for full argument. RAYTHEON confirms a foreign defendant may still challenge jurisdiction even where leave for service out has been granted. The objection was raised at the earliest opportunity and was properly entertained.
Whether the High Court had jurisdiction over a foreign insurer under a contract governed by English law
No. The contract was made in England, the deceased resided in England, the insurer's registered office was in Middlesex, English law applied by default under the closest and most real connection principle, and no application for leave to serve out of the jurisdiction under Order 5 rule 21 was ever made.
Following RAYTHEON and the older KARACHI GAS decision, the High Court assumes jurisdiction over contract matters involving foreign defendants only where the contract was made in Kenya, is governed by Kenyan law, or the breach occurred in Kenya, or where leave is granted for service out of the jurisdiction. None of the three connecting factors applied. The choice-of-law clause in the policy pointed to English law absent an agreed election otherwise. The suit was therefore properly struck out for want of jurisdiction.
Legal principles established
#- A court without jurisdiction cannot take any further step in a matter, however weighty it may be
- The High Court will not assume jurisdiction over a contract dispute involving a foreign defendant unless the contract was made in Kenya, is governed by Kenyan law, or the breach was committed in Kenya, or leave has been obtained for service out of the jurisdiction
- A defendant who raises the jurisdictional objection at the earliest instance after entering appearance is not estopped from challenging jurisdiction, even after applying to set aside a default judgment
Court orders
#- 1.Appeal dismissed with costs to the 2nd respondent
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 309 of 2011
- Jurisdiction invoked
- First appeal from the High Court under the Court of Appeal's appellate jurisdiction (Constitution of Kenya, 2010); High Court's original civil jurisdiction under Article 165 considered
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "W K, M W K (Both suing as the Administrators of the Estate of Dr. W K) & another v British Airways Travel Insurance & another [2017] KECA 393 (KLR)", Case Analysis (2017). Civil Appeal No. 274 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/393/eng@2017-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.