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Case Brief · caselaw.co.ke
High CourtDismissedNotice of motion dated 19/11/2018

SNM v MWM

High Court of Kenya
13 February 2019
2,378 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If the country issuing a foreign judgment isn't on the approved list, you must file a new lawsuit to enforce it in Kenya.

What this practically means

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Executive summary

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The applicant, SNM, moved the High Court by notice of motion dated 19/11/2018 seeking adoption and enforcement as a judgment of the High Court of Kenya of a decree of dissolution of marriage issued by the Marion Superior Court, State of Indiana, United States, on 20/11/2002, in matrimonial proceedings between the applicant and the respondent, MWM. The application was unopposed despite evidence of proper service. The sole question framed was whether the court had jurisdiction to adopt and enforce the foreign judgment. The court analysed the Foreign Judgments (Reciprocal Enforcement) Act Cap 43, which permits registration of judgments only from designated reciprocating countries - Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda - and found that the United States is not a designated country. Relying on the Court of Appeal decision in Jayesh Hasmukh Shah v Navin Haria and the common law principles in Adams v Cape Industrials PLC, the court held that judgments from non-designated countries are enforceable in Kenya only as common law claims, requiring the creditor to file a plaint claiming the judgment debt, exhibit a certified copy of the foreign judgment, and satisfy requirements of foreign court competence, finality and conclusiveness under Section 9 of the Civil Procedure Act. The applicant's motion, drawn as a registration application, therefore misapprehended the law and could not succeed. The notice of motion was dismissed with no orders as to costs.

Key legal issues

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01

Jurisdiction to adopt and enforce a foreign judgment from a non-designated country

Holding

The court cannot adopt and enforce such a judgment by way of a notice of motion for registration; the correct procedure is a fresh common law action by plaint.

Reasoning

The Foreign Judgments (Reciprocal Enforcement) Act Cap 43 permits registration only of judgments from designated reciprocating countries, which do not include the United States. For non-designated countries, the common law route applies: the judgment creditor must file a plaint claiming the judgment debt, exhibit a certified copy of the foreign judgment, and satisfy the requirements set out in Jayesh Hasmukh Shah v Navin Haria, including foreign court competence, finality and conclusiveness under Section 9 of the Civil Procedure Act.

p. 2

Legal principles established

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  • In the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common law, requiring the filing of a plaint claiming the judgment debt rather than registration.
  • An action for enforcement of a foreign judgment must be brought in Kenya within 12 years of the date of that judgment under Section 4(4) of the Limitation of Actions Act.

Court orders

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  1. 1.Dismissal of the notice of motion dated 19/11/2018 with no orders as to costs
Jurisdiction invoked
Article 165(3) of the Constitution of Kenya, 2010; Section 3 of the Judicature Act Cap 8; Section 9 of the Civil Procedure Act Cap 21

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, "SNM v MWM", Case Analysis (2019). Notice of motion dated 19/11/2018. Source: 

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