Winning a judgment or arbitral award abroad over an infringement claim, a licensing dispute, or a royalty shortfall is only half the job for a foreign IP owner. The award or judgment still has to be recognised and enforced in Kenya before it produces anything collectable, and the route, the odds, and the available defences differ sharply depending on whether the starting point is a foreign court judgment or an arbitral award, and on where it came from.
Foreign Judgments: Only Eight Countries Get the Fast Route
The Foreign Judgments (Reciprocal Enforcement) Act, Cap 43, lets a judgment creditor register a foreign judgment at the High Court within six years of the judgment, after which it has the same force as a Kenyan High Court judgment. But this fast route is only open for judgments from countries the Cabinet Secretary has actually gazetted as reciprocating. Per Legal Notice 135 of 1984, as currently in force, that list runs to exactly eight countries: Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom, and Rwanda. A judgment from the United States, the European Union, China, India, or South Africa gets none of this. Cap 43 also carves out exemplary, punitive, and multiple damages entirely, so even a judgment from a gazetted country will only register for its compensatory component; enhanced damages elements common in some foreign IP judgments simply do not travel with it.
Everyone Else: The Common Law Action
A judgment from outside the gazetted list is not unenforceable, but it loses the shortcut. The judgment creditor must bring an ordinary suit in the Kenyan courts, treating the foreign judgment as evidence of a debt owed rather than as something directly registrable, and the Kenyan court will examine essentially the same questions Cap 43 would have asked on an application to set aside registration: whether the foreign court had proper jurisdiction, whether the defendant had fair notice and an opportunity to be heard, and whether enforcement would offend Kenyan public policy. This route is slower, costs more, and forces the judgment creditor to relitigate matters that would have been fairly mechanical under Cap 43. The Court of Appeal’s own leading authority on this point, Jayesh Hasmukh Shah v Navin Haria & another [2016] eKLR, confirms that the absence of a reciprocal arrangement is not fatal: a judgment from a non-designated country, in that case an Ethiopian judgment, can still be enforced in Kenya through an ordinary common law action once the same jurisdiction, notice, and public policy questions are satisfied.
Foreign Arbitral Awards: A More Direct Route Under the New York Convention
Kenya ratified the New York Convention on 10 February 1989, and the Arbitration Act, 1995, section 36, gives domestic and international awards equal treatment: an international award is recognised as binding and enforced in accordance with the Convention on application to the High Court. Kenya’s accession carried the Convention’s optional reciprocity reservation, so the obligation runs to awards made in the territory of another Convention state, not to every foreign award regardless of seat. Section 37 sets out the limited grounds on which enforcement can be refused, tracking the Convention closely: incapacity or an invalid arbitration agreement, improper notice of the arbitrator’s appointment or the proceedings, an award exceeding the scope of the reference, an improperly composed tribunal, an award not yet binding or already set aside at the seat, a subject matter incapable of settlement by arbitration under Kenyan law, or a conflict with Kenyan public policy. For an IP owner holding a foreign award, this is generally the more reliable and direct enforcement path compared with a foreign judgment from a non-gazetted country.
Where It Gets Genuinely Uncertain: Arbitrability of IP-Specific Awards
Section 37’s “incapable of settlement by arbitration” ground deserves particular care for IP awards specifically. A contractual dispute over a licence, a royalty shortfall, or an assignment breach is an ordinary commercial dispute and arbitrable like any other contract claim; nothing in Kenyan law singles those out. Patent, utility model, and industrial design validity and infringement questions sit differently: the Industrial Property Act channels revocation, invalidation, and infringement relief through a dedicated statutory Industrial Property Tribunal, with appeal to the High Court, rather than leaving them to be resolved however the parties see fit. That specialised statutory structure is a genuine, Kenya-specific reason for caution about arbitrating the validity or infringement of those rights as such, separate from any dispute about a contract concerning them. It is also worth being precise about a claim that circulates in commentary on this topic: that patents, trademarks, and copyright are simply “not arbitrable in Kenya,” usually citing Gerick Kenya Limited v Honda Motorcycle Kenya Limited [2019] eKLR. That case was a dealership dispute involving allegations of fraud and an insolvency petition, with nothing to do with IP; the court there approvingly quoted a list from the Indian Supreme Court’s decision in A. Ayyasamy v Paramasivam, which named those categories among ones generally treated as non-arbitrable internationally. No Kenyan court appears to have actually held, on IP facts, that a trademark or copyright dispute is non-arbitrable. For those rights, the honest position is that the question remains genuinely untested in Kenya, not settled either way.
Practical Implications for a Judgment or Award Holder
Before assuming a straightforward registration, check whether the judgment’s country of origin is actually one of the eight gazetted states; if it is not, budget for a common law suit rather than a Cap 43 application. Where a foreign judgment includes exemplary, punitive, or multiple damages, expect only the compensatory component to be enforceable through registration even from a gazetted country. For an arbitral award, confirm the seat falls within a New York Convention state given Kenya’s reciprocity reservation, and where the award resolves a patent or design validity or infringement question rather than a straightforward licensing dispute, anticipate a live arbitrability objection at the enforcement stage and prepare the record accordingly.
How We Can Help
Clay & Associates Advocates advises foreign IP owners and instructing counsel on enforcing foreign judgments and arbitral awards in Kenya, including assessing which route applies and preparing for likely objections at the enforcement stage. Our guide to PCT national phase entry in Kenya and our guide to local agent requirements for foreign IP applicants cover the filing side of the same cross-border practice. Contact our Intellectual Property practice to discuss enforcing a foreign judgment or award over IP rights in Kenya.
Sources: Foreign Judgments (Reciprocal Enforcement) Act, Cap 43; Legal Notice 135 of 1984; Arbitration Act, 1995, sections 36-37; Industrial Property Act, 2001, sections 103-118; Jayesh Hasmukh Shah v Navin Haria & another [2016] eKLR; Gerick Kenya Limited v Honda Motorcycle Kenya Limited [2019] eKLR.
Frequently asked questions
Can a US IP judgment be registered directly in Kenya?
No. The United States is not among the eight countries gazetted as reciprocating under Cap 43, so a US judgment must instead be enforced through an ordinary common law suit.
Will punitive or statutory damages from a foreign IP judgment be enforced in Kenya?
No. Cap 43 expressly excludes exemplary, punitive, and multiple damages, even for judgments from a gazetted reciprocating country.
Is a foreign arbitral award easier to enforce than a foreign judgment?
Generally yes, provided the seat is in a New York Convention state, given Kenya’s reciprocity reservation on accession. The grounds for refusal under section 37 of the Arbitration Act are narrower than the questions a court asks in a common law suit on a foreign judgment.
Are patent and trademark disputes arbitrable in Kenya?
It’s genuinely unsettled. No Kenyan court appears to have ruled on point. Patent and design validity and infringement questions sit within a dedicated statutory Tribunal under the Industrial Property Act, which is a real basis for caution, while ordinary contractual IP disputes such as licensing and royalty claims are arbitrable like any other commercial dispute.
