How to Enforce a Foreign Judgment in Kenya

If you have obtained a judgment outside Kenya and want to enforce it locally, Kenyan law provides a clear legal framework for recognition and execution of the same. This guide explains: which foreign judgments are enforceable, the legal requirements, the step-by-step registration process, and common pitfalls to avoid.

What Is a Foreign Judgment in Kenya?

As per Section 2 of the Civil Procedure Act, a foreign Judgment is a judgment from a Court outside Kenya. Enforcement of the same may be established by Treaty or follow General Principles of International Law. Generally, in Kenya, enforcement of foreign judgments delivered in countries which accord reciprocal treatment to judgments given in Kenya is governed by the Foreign Judgments (Reciprocal Enforcement) Act.

What are the Countries that Accord Reciprocal Treatment?

According to the Foreign Judgments (Reciprocal Enforcement) (Extension of Act) Order, judgments given by superior courts of the following countries are enforceable in Kenya:

1. Australia
2. Malawi
3. Seychelles
4. Tanzania
5. Uganda
6. Zambia
7. The United Kingdom
8. Republic of Rwanda

Jurisdiction of the Foreign Court

Notably and as per Section 4 of the Act, a foreign Court must have jurisdiction to adjudicate over the cause of action. A foreign Court is said to have competent jurisdiction where:

1. The judgment debtor submitted to the jurisdiction of the court by voluntarily appearing in the proceedings
2. The judgment debtor was plaintiff, or counterclaimed, in the proceedings in the original court
3. The judgment debtor had, before the commencement of the proceedings, agreed in writing to submit to the jurisdiction of the original court
4. The judgment debtor was, at the time when the proceedings were instituted, habitually resident in the country of the court, or had its place of incorporation or principal place of business in that country
5. The judgment debtor had an office or place of business in the country of that court and the proceedings were in respect of a transaction effected through that office
6. The judgment debtor was conducting business within the country of the original court and had appointed an agent there to receive service of process
7. In the case of a claim arising out of a contract, the obligation was, or was to be, wholly or mainly performed in the country of the original court
8. In the case of a judgment in rem or to determine rights of ownership in property, the property was situated in the country of that court
9. In the case of an action for physical injury, death, or damage to tangible property, the circumstances giving rise to injury or damage substantially occurred in the country of the original court

When Will a Foreign Judgment Be Rejected in Kenya?

Under Section 9 of the Civil Procedure Act, foreign judgements are not conclusive in Kenya where:

1. The judgment was not pronounced by a court of competent jurisdiction
2. It has not been given on the merits of the case
3. It appears the judgment is founded on an incorrect view of international law or a refusal to recognize the law of Kenya where such law is applicable
4. The proceedings in which the judgment was obtained are opposed to natural justice
5. The judgment has been obtained by fraud
6. The judgment sustains a claim founded on a breach of any law in force in Kenya

Step-by-Step Process to Enforce a Foreign Judgment in Kenya

Step 1: Preparation of Required Documents

The Application must meet the following requirements:

1. A certificate in the prescribed form issued from the foreign court under its seal and signed by a judge or registrar
2. The judgment or a certified/duly authenticated copy thereof, certified by a notary public if not in English
3. An affidavit stating that at the date of application, the judgment remains unsatisfied and can be enforced by execution in the country of the original court
4. Where given by a superior court of a Commonwealth country, a certificate under its seal certifying that the court is a superior court
5. Such other evidence as may be prescribed

Step 2: File the Application in the High Court

As per Section 5 of the Act, a judgment creditor may apply to the High Court in Kenya to have the judgment registered within six years of the date of the judgment.

Step 3: Registration of the Judgment

Where the High Court is satisfied, it allows the judgment to be registered. The judgment then becomes enforceable like a Kenyan one.

Step 4: Enforcement (Execution)

Once registered, you can proceed with: attachment of the debtor's property, Garnishee proceedings (bank accounts), and/or auction through licensed auctioneers.

Step 5: Possible Challenge by Debtor

As per Section 10 of the Act, the judgment debtor may apply to the High Court to have the judgment set aside. This necessitates proper and surgical legal preparation.

Practical Challenges in Enforcement

From practice, the biggest issues include: Improper documentation, Filing outside limitation period, Jurisdiction disputes, Fraud allegations, and Difficulties tracing debtor assets.

Whether you are the Judgment Debtor or the Creditor, you can reach out for personalized legal solutions. At Musa & Musa Advocates, we guide our clients through the whole process — from issuing demand notices and structuring repayment arrangements to navigating court procedures and enforcement — ensuring that every step is taken with precision and professionalism.

Contact Musa & Musa Advocates

For confidential consultation regarding enforcement of foreign judgments, contact Musa & Musa Advocates.