Enforcing Foreign Judgments in Kenya: A Practical Legal Guide

Enforcing foreign judgments in Kenya matters because cross-border commercial disputes often produce a judgment in one country that must be enforced against assets in Kenya. Kenya has two different routes for foreign court judgments, registration under the Foreign Judgments (Reciprocal Enforcement) Act and a fresh common law action, and a separate route for arbitral awards. Confusing which route applies is the most common avoidable mistake at the outset of an enforcement matter.

Enforcing Foreign Judgments in Kenya: The Registration Route

The Foreign Judgments (Reciprocal Enforcement) Act provides a registration procedure for judgments of designated courts in reciprocating countries, so the judgment creditor does not have to relitigate the dispute. Under section 5(1), the creditor may apply to the High Court to register the judgment within six years of the date of the judgment or, where there was an appeal, of the date of the last judgment in the appeal proceedings. An application may be made ex parte in the circumstances set out in section 5(2), for example where the debtor was personally served or appeared in the original court and the time for appeal has expired with none pending. Once registered, the judgment has effect for enforcement purposes as provided in section 8, and the debtor may apply to set the registration aside on the grounds in section 10, which include that the foreign court had no jurisdiction over the cause of action.

The reciprocating countries are those declared by the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order (Legal Notice 135 of 1984). Its Schedule, as consolidated on Kenya Law, lists eight: Australia, Malawi, the Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda. A judgment from a country not on that list, whether the United States, China, India or most European Union states, cannot be registered under the Act. Check the current Schedule before relying on any general impression of which countries Kenya has reciprocal arrangements with, because the Cabinet Secretary may extend the Act to further countries under section 13.

Route Two: The Common Law Action on the Judgment

For a judgment from any other country, the creditor generally has to start a fresh action in the Kenyan courts, pleading the foreign judgment as the cause of action rather than reopening the underlying dispute. The foreign judgment is treated as a debt that can be sued upon, and the Kenyan court’s role is largely to confirm that the judgment is final and enforceable. The recognised defences are narrow: want of jurisdiction of the foreign court over the debtor, fraud in obtaining the judgment, public policy, and breach of natural justice. A debtor cannot use the action to re-argue the merits. This route is slower and costlier than registration because it proceeds as an ordinary suit with pleadings and possibly a hearing.

Arbitral Awards: The New York Convention

Kenya acceded to the New York Convention on 10 February 1989, according to the UNCITRAL status table, which also records any declarations or reservations made on accession; check that record for the precise position. Enforcement of awards is governed by the Arbitration Act, 1995. Section 36(2) provides that an international arbitration award shall be recognised as binding and enforced in accordance with the New York Convention or any other convention to which Kenya is a signatory. Under section 36(3) and (4), the party relying on an award must furnish the original award or a duly certified copy and the original arbitration agreement or a duly certified copy, with a duly certified English translation if either is not in English.

Section 37(1) allows recognition or enforcement to be refused only on the stated grounds, on proof by the party resisting enforcement. These include incapacity of a party, invalidity of the arbitration agreement, lack of proper notice or inability to present one’s case, and an award dealing with matters outside the reference to arbitration, together with the further grounds in the section such as an award that is not yet binding or has been set aside, or that offends the public policy of Kenya. The grounds are deliberately narrow, and an enforcement application is not a second chance to argue the merits. See our guide to enforcing foreign arbitral awards in Kenya.

Asset Tracing and Enforcement

Whether enforcing a judgment or an award, asset tracing is the essential next step, because a judgment is of limited value without identifiable assets in Kenya. Section 9 of the Foreign Judgments Act provides for garnishee orders on registered judgments, and Kenyan procedure also offers orders for the debtor to disclose assets, charging orders over real property and the appointment of receivers where ongoing business income is the practical route. Start asset tracing in parallel with recognition or registration, because a debtor who learns that enforcement is under way has an incentive to move assets out of reach. Our guide to enforcing judgments in Kenya covers the post-judgment toolkit.

Public Policy: The Common Defence

Public policy is the defence most often raised against enforcement of foreign judgments and awards, whether under registration, the common law action or the Arbitration Act. It is generally treated as an exceptional ground, reserved for cases where recognition would offend fundamental principles of fairness or justice, rather than a means of second-guessing the foreign decision. A creditor anticipating the defence should be ready to show that the foreign proceedings met basic standards of fairness and that the claim is not objectionable in principle under Kenyan law.

Frequently asked questions

This article is general information on Kenyan law as at its publication date, not legal advice. Reading it does not create an advocate and client relationship.