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Court of AppealPartially AllowedCivil Appeal No. 63 of 2018· [2019] KECA 957 (KLR)

Tornado Carriers Limited v Kenfreight Uganda Limited & another [2019] KECA 957 (KLR)

Court of Appeal of Kenya
14 February 2019
AVAlnashir VisramWKW. KaranjaFSF. Sichale
3,355 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal stopped enforcement of a Ugandan judgment, confirming that contesting a foreign court's jurisdiction is not submission to it.

What this practically means

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Executive summary

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This appeal challenged the High Court at Mombasa's Ruling of 16th February 2018 (Otieno J.) allowing the respondents' Originating Summons to register a Ugandan foreign judgment of €45,362 awarded for goods lost in transit while in the appellant's custody. The appellant argued that the Kampala High Court lacked jurisdiction because the parties were Kenyan companies, the contract was executed in Kenya, and the goods were stolen at Kakamega; and that she had never submitted to the Ugandan court's jurisdiction. The Court of Appeal, in a single unanimous judgment, held that under section 4(2)(b)(i) of the Foreign Judgments (Reciprocal Enforcement) Act, entering appearance merely to contest jurisdiction is not submission, applying Re: Dulles Settlement (No. 2). Since the appellant's defence before the court of origin raised a jurisdictional objection that was never determined, the superior court should have declined registration of the foreign judgment. The Court further held that registration ran afoul of Article 5(3) of the 1971 Convention because a Kenyan suit over the same goods was pending, and that the cause of action arose in Kenya, not Uganda. However, the Court rejected the argument that the pendency of an appeal against the foreign judgment barred registration, citing section 3(2) of the Act. Allowing the appeal, the Court set aside the High Court Ruling, dismissed the Originating Summons suit, and awarded the appellant costs both in the Court of Appeal and the High Court.

Key legal issues

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01

Whether the appellant submitted to the jurisdiction of the court of origin

Holding

The appellant did not submit to the jurisdiction of the High Court of Uganda because she entered appearance only to object to that jurisdiction; section 4(2)(b)(i) of the Act expressly preserves that position.

Reasoning

The appellant was sued as a third party before the Kampala High Court and responded with a written statement of defence raising an objection to jurisdiction. Section 4(2)(b)(i) of the Foreign Judgments (Reciprocal Enforcement) Act provides that appearance to contest jurisdiction is not submission. Re: Dulles Settlement (No.2) confirms that a party who appears with the sole object of protesting jurisdiction does not submit. Submission was therefore not established.

p. 4
02

Whether the foreign judgment could be registered where the jurisdictional objection remained undetermined

Holding

The superior court should have declined registration because the jurisdictional objection to the court of origin was never resolved, and the cause of action arose in Kenya.

Reasoning

The court of origin never addressed the issue of jurisdiction, and no appeal appears to have been lodged against it. The cause of action was the loss of goods at Kakamega in Kenya, so Kenyan courts would have had jurisdiction; the completion of the contract in Uganda did not confer exclusive jurisdiction on the Ugandan court. Registration of the judgment in those circumstances was erroneous.

p. 4
03

Effect of a concurrent Kenyan suit on registration

Holding

Registration of the foreign judgment ran afoul Article 5(3) of the Convention because a Kenyan suit over the same goods was pending.

Reasoning

It was not disputed that the 2nd respondent had filed CMCC No. 2006 of 2009 against the appellant seeking damages for loss of the same goods, and that suit was said to be pending. Recognition of the foreign judgment in those circumstances was contrary to Article 5(3) of the 1971 Convention on Recognition and Enforcement of Foreign Judgments.

p. 4

Legal principles established

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  • Entering appearance solely to contest the jurisdiction of the original court does not amount to submission to that jurisdiction.
  • Where a question of jurisdiction of the court of origin remains undetermined, the High Court should decline to register the foreign judgment.

Court orders

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  1. 1.The Ruling and Order dated 16th February 2018 in Mombasa HCCC No. 52 of 2016 (OS) set aside
  2. 2.The said suit dismissed
  3. 3.The appellant awarded costs both in this Court and in the High Court
On appeal from
High Court of Kenya at Mombasa
Mombasa H.C. Civil Case No. 52 of 2016 (OS)
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act; appeal against a Ruling of the High Court on registration of a foreign judgment under the Foreign Judgments (Reciprocal Enforcement) Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Tornado Carriers Limited v Kenfreight Uganda Limited & another [2019] KECA 957 (KLR)", Case Analysis (2019). Civil Appeal No. 63 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/957/eng@2019-02-14

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