Alb v Asb

3. The Respondent’s Notice of Preliminary Objection is anchored on the premise that this Court is wholly bereft of the requisite jurisdiction to entertain the Application. The Respondent’s challenge to the Court’s jurisdiction is tripartite in nature, invoking statutory exclusions, the doctrine of international diplomatic immunity, and procedural deficiencies. 4. The Preliminary Objection was canvassed by way of written submissions. 5. While a Preliminary Objection must inherently rely on points of law rather than contested facts, it is impossible to adjudicate such an objection in a vacuum. A brief distillation of the factual substratum, as gleaned from the uncontroverted pleadings and the face of the foreign judicial records annexed to the application, is necessary to provide context to the legal determinations herein. 6. The Applicant and the Respondent are the biological parents of two minor children. The Applicant is a British citizen residing in Lilongwe, Malawi, while the Respondent is a foreign national residing in Nairobi, Kenya, where he is employed by the United Nations World Food Programme (WFP). Following the Respondent's alleged neglect and failure to contribute to the maintenance of the minors, the Applicant instituted Family Cause No. 5 of 2024 in the High Court of Malawi, Lilongwe District Registry, seeking child maintenance orders under the Malawian Child Care, Protection and Justice Act. 7. The record from the High Court of Malawi indicates that the Respondent was served with the court process out of jurisdiction. Due to his apparent evasion of service, the Malawian Court granted an order for substituted service, permitting service upon the Respondent through his employer, the WFP in Nairobi, via international courier. Despite the Malawian Court satisfying itself that the Respondent had received the documents and was aware of the hearing dates, the Respondent neither entered an appearance nor filed a defence to the maintenance claim. 8. Consequently, the proceedings in Malawi continued undefended. On 30 October 2024, the Honourable Justice Fiona Atupele Mwale delivered a Ruling on Application for Child Maintenance, finding the Respondent legally liable to maintain the children and ordering him to make specified financial provisions. The Respondent failed to honour this judicial directive, prompting the Applicant to return to the Malawian Court. 9. On 16 July 2025, Justice Mwale issued a formal Certificate of Judgment under the seal of the High Court of Malawi. This Certificate categorically verified that a judgment had been duly entered, that no appeal had been instituted, and that the time for appeal had lapsed. Most critically for the purposes of the instant application, the Certificate quantified the Respondent's unfulfilled obligations, allowing a lump sum payment of USD 63,232.00 representing the arrears from the date of filing to June 2025, alongside accumulated costs, bringing the total unsatisfied balance due to USD 73,162.00. 10. Armed with this Certificate of Judgment and the authenticated Ruling, the Applicant filed the present proceedings in Kenya, the jurisdiction where the Respondent currently resides and holds assets, seeking to utilize the reciprocal enforcement mechanisms established between Kenya and Malawi. The Respondent's Submissions 11. The Respondent advances three primary arguments in support of the prayer to strike out the suit in limine. First, the Respondent mounts a statutory challenge based on the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 43 of the Laws of Kenya. The Respondent correctly points out that while section 3(1) of the Act sets out the categories of foreign judgments that are registrable in Kenya, section 3(3) establishes strict exclusionary categories. Specifically, the Respondent relies on section 3(3)(c), (d), and (e), which preclude the application of the Act to judgments concerning the periodical payment of https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4154/eng@2026-03-30 2

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money as maintenance for a child, judgments in matrimonial causes, and proceedings in connection with the custody or guardianship of children. 12. The Respondent argues that the Malawian judgment inherently relates to a matrimonial cause, child custody, and child maintenance, and thus falls squarely within the precluded matters under the Act. To fortify this position, the Respondent cites the rulings in AZU v ZUM eKLR and P.M. v I.B. eKLR. In both cases, the Court declined to register foreign judgments (from Tanzania and New York, respectively) that contained orders dissolving marriages, awarding child custody, and mandating periodic maintenance payments, holding that such matters were statutorily excluded by section 3(3) of Cap 43. 13. Second, the Respondent invokes the doctrine of jurisdictional immunity. He contends that he is a diplomatic employee of the United Nations, specifically the World Food Programme. He argues that, absent an express waiver, the High Court of Kenya lacks jurisdiction over him by reason of the Privileges and Immunities Act (Chapter 179) and the Diplomatic Privileges (United Nations and International Court of Justice) Order. 14. Third, introducing a procedural argument in his written submissions, the Respondent contends that the Applicant is attempting to register a Ruling and not a judgment. He further avers that the Ruling attached to the application violates section 5(4) of the Act because it lacks a notarization certificate from a Notary Public. The Applicant's Submissions 15. The Applicant mounts a vigorous defence against the preliminary objection, characterizing it as a legally flawed attempt to evade parental responsibility. 16. The Applicant concedes that section 3(3) of the Act excludes judgments for periodical maintenance payments. However, the Applicant draws the Court's attention to section 3(1)(a) of the same Act, which expressly allows for the registration of a foreign judgment whereby a sum of money is made payable, including an order for the payment of a lump sum as financial provision or maintenance for a child. The Applicant argues that she is not seeking to register an order for ongoing periodic payments; rather, she is strictly seeking to register the crystallized lump sum of USD 73,162.00, as unequivocally quantified in the Certificate of Judgment issued by the High Court of Malawi. Therefore, she submits that the judgment satisfies section 3(1)(a) and does not offend section 3(3)(c). 17. Regarding diplomatic immunity, the Applicant raises a procedural threshold argument, citing the locus classicus of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd EA 696. She argues that a preliminary objection must be based on a pure point of law. The question of whether the Respondent actually holds diplomatic status and enjoys immunity is a question of fact requiring evidentiary proof, and thus cannot be sustained as a preliminary objection. Substantively, the Applicant argues that under the Basic Agreement between the Government of Kenya and the WFP, the immunity enjoyed by WFP officials is functional immunity—limited to acts performed in their official capacity. She asserts that neglecting to maintain one's biological children is a private, personal dereliction that does not attract organizational immunity. 18. Finally, the Applicant dismisses the procedural objections regarding nomenclature and notarization. She argues that the semantic distinction between a ruling and a judgment is cured by the issuance of the formal Certificate of Judgment. Furthermore, she contends that under section 88 of the Evidence Act, the requirement for notarization is defeated where a foreign judicial record is duly authenticated by the seal and signature of the issuing court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4154/eng@2026-03-30 3

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Analysis & Determination 19. It is an elementary and foundational principle of civil procedure in this jurisdiction that a preliminary objection must be grounded strictly on a pure point of law. The defining parameters of a preliminary objection were authoritatively set out by the East African Court of Appeal in the seminal case of Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd EA 696. 20. In that case, Law, J.A. enunciated the principle as follows: “ A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration." 21. Sir Charles Newbold, P., provided further clarity, stating: “ A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion." 22. This standard has been consistently upheld by the Supreme Court and the Court of Appeal. A preliminary objection cannot be utilized as a covert mechanism to introduce contested facts, evaluate evidentiary disputes, or bypass the necessity of a full judicial inquiry where facts remain unproven. 23. Applying the Mukisa Biscuit case threshold to the present case, the Court must bifurcate the Respondent's grounds of objection. 24. The Respondent's first ground—that the Malawian judgment is statutorily excluded from registration by section 3(3) of the Act—is undoubtedly a pure point of law. It requires this Court to interpret the provisions of the Foreign Judgments (Reciprocal Enforcement) Act and apply that interpretation to the face of the Malawian decree. No extrinsic evidence is required to ascertain whether the subject matter of the judgment falls within a statutory exception. Therefore, this ground is properly raised as a preliminary objection. 25. However, the Respondent's second ground—that he enjoys absolute diplomatic immunity—invites a different conclusion. The Applicant correctly argues that the question of immunity is intrinsically tied to questions of fact. To determine whether an individual is immune from legal process, a court must ascertain several factual prerequisites: What is the exact nature of the individual's employment? Are they a high-ranking diplomatic envoy accredited to the host state, or a mid-level international civil servant? Does the host country agreement grant absolute or functional immunity? Were the acts complained of performed within the scope of the individual's official duties? 26. None of these facts can be assumed without the adduction of evidence. A blanket assertion of immunity in a Preliminary Objection, without the prior establishment of a factual foundation. Because the establishment of immunity in this context requires the ascertainment of facts, it fails the strict test of a demurrer as defined in Mukisa Biscuit case. 27. Strictly speaking, the preliminary objection on the ground of immunity ought to be dismissed in limine for failing to meet the procedural threshold. However, because the issue touches upon the foundational jurisdiction of the Court, and because the Applicant has admitted in her pleadings that the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4154/eng@2026-03-30 4

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is an employee of the World Food Program, this Court deems it prudent and in the interest of judicial economy to address the substantive legal principles of organizational immunity later in this ruling. This will provide finality to the parties' contentions and prevent the recycling of the same arguments during the substantive hearing. The Scope and Application of the Foreign Judgments (Reciprocal Enforcement) Act 28. The central pillar of the Respondent's objection rests on the interpretation of section 3 of the Foreign Judgments (Reciprocal Enforcement) Act. 29. The enforcement of foreign judgments in Kenya is a manifestation of the doctrine of international comity. As the Court of Appeal articulated in Jayesh Hasmukh Shah vs Navin Haria & another [2016] eKLR, Courts recognize and enforce foreign judgments to ensure that borders do not become sanctuaries for judgment debtors and to facilitate transnational justice. In Kenya, this recognition is governed primarily by statute for designated reciprocating countries, and by the common law (as codified under section 9 of the Civil Procedure Act) for non-designated countries. 30. It is common ground that the Republic of Malawi is a designated reciprocating country pursuant to the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, 1984. Therefore, judgments of the High Court of Malawi are prima facie subject to the statutory registration mechanism under the Act. 31. The dispute arises from the internal structure of section 3 of the Act. The Respondent relies heavily on section 3(3), which outlines specific judgments to which the Act does not apply. Section 3(3) provides, in relevant part: This Act does not apply to a judgment or order— (c) for the periodical payment of money as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of the person against whom the order was made; (d) in a matrimonial cause or matter, or determining rights in property arising out of a matrimonial relationship... (e) in proceedings in connection with the custody or guardianship of children; 32. The Respondent cites the decisions in AZU v ZUM eKLR and PM v IB eKLR to argue that the Malawian judgment is totally excluded. In AZU v ZUM, the applicant sought to register a Tanzanian judgment that dissolved a marriage, awarded child custody, and ordered ongoing monthly maintenance of USD 250. Musyoka J. rightfully dismissed the application, holding that the judgment traversed matrimonial causes, custody, and periodic maintenance, thereby violating sections 3(3)(c), (d), and (e). Similarly, in PM v IB, Onyiego J. struck out a suit seeking to confirm and then vary a New York Supreme Court judgment involving divorce, custody, and ongoing child support of USD 2,500 per month. 33. However, the Respondent's analysis is legally myopic. He entirely ignores the exclusionary exception carved out by the legislature in section 3(1)(a) of the Act, upon which the Applicant relies. Section 3(1)(a) dictates that the Act shall apply with respect to a judgment or order of a designated court in civil proceedings whereby a sum of money is made payable, including an order for the payment of a lump sum as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another. 34. The legislature explicitly drew a distinction between periodical payments, which are excluded under section 3(3)(c), and lump sum payments, which are expressly included under section 3(1)(a). 35. The jurisprudential basis for this distinction is profound. When a foreign court adjudicates maintenance arrears or capitalizes a maintenance obligation into a singular, definitive lump sum, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4154/eng@2026-03-30 5

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judgment sheds its fluid, variable nature. It metamorphoses into a crystallized, liquidated judgment debt. It satisfies the common law and statutory prerequisite of being final and conclusive. 36. The Applicant, in her Application, explicitly restricts her prayer to the registration and execution of the crystallized sum of USD 73,162.00. She is not petitioning this Court to register the ongoing, future monthly payments of USD 3,952 listed in paragraph (b) of the Certificate, nor is she seeking orders regarding the dissolution of a marriage or the custody of the children. 37. The Respondent’s reliance on AZU v ZUM and PM v IB is, therefore, fundamentally misplaced. Those cases dealt with applicants attempting to register the entirety of a foreign family decree, including the fluid components of custody and future periodic maintenance. In the present matter, the Applicant has surgically excised the crystallized, definitive debt component of the Malawian decree. 38. Statutory interpretation demands that all provisions of an Act be read harmoniously, giving effect to the intention of the legislature. To interpret section 3(3) as a blanket prohibition against the registration of any judgment that merely contains the word "maintenance"—even when the specific decree sought to be enforced is a crystallized lump sum—would render the explicit inclusionary language of section 3(1)(a) entirely superfluous, redundant, and absurd. 39. Therefore, the Court finds and holds that the lump sum of USD 73,162.00, representing capitalized arrears and costs, is a final and conclusive judgment debt that falls squarely within the protective ambit of section 3(1)(a) of the Foreign Judgments (Reciprocal Enforcement) Act. The Court possesses the requisite subject-matter jurisdiction to entertain the application for its registration. The preliminary objection on this ground fails. 40. Consequently, the Court makes the following orders: i. The Respondent's Notice of Preliminary Objection dated 22 October 2025 is hereby dismissed. ii. The costs of this Preliminary Objection shall be borne by the Respondent, to be taxed if not agreed. iii. Respondent is hereby granted 14 days from the date of this Ruling to file and serve his substantive Replying Affidavit and written submissions to the Originating Notice of Motion, failing which the Application shall proceed to be heard and determined undefended. DATED AND DELIVERED AT NAIROBI THIS 30 DAY OF MARCH 2026 HELENE R. NAMISI JUDGE OF THE HIGH COURT Delivered on virtual platform in the presence of: For the Applicant: Mr Mwangale For the Respondent: Mr Muyove Court Assistant: Lucy Mwangi https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4154/eng@2026-03-30 6

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