The two routes to enforcing a foreign judgment in Kenya, the available defences, and how foreign arbitral awards differ.
Where the judgment comes from a designated superior court of a reciprocating country, the judgment creditor applies to the High Court to register it. The application may be made ex parte, supported by a certified copy of the judgment and an affidavit showing that it is final and conclusive and remains enforceable in the country of origin. Once registered, the judgment has the same force and effect as a High Court judgment entered on the date of registration, and the ordinary execution methods — attachment and sale, garnishee orders and the rest — become available. Notice of registration is then served on the judgment debtor, who has a window to apply to set it aside.
The list of reciprocating countries is the gating issue. At present it comprises Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda. A judgment from any other country — including major commercial jurisdictions that are not on the list — cannot be registered and must take the common-law route. There have been calls to widen the list and to ratify the 2019 Hague Judgments Convention, but until that happens the eight-country list governs.
Where there is no reciprocal arrangement, the creditor cannot register the judgment. Instead, as the Court of Appeal confirmed in Jayesh Hasmukh Shah v Navin Haria & Another [2016] eKLR, the foreign judgment is enforced as a claim at common law: the creditor files a fresh suit in Kenya in which the foreign judgment is treated as creating a debt. To succeed, the judgment must be final and conclusive, for a definite sum of money, and from a court of competent jurisdiction over the defendant. It is more involved than registration — effectively a new action — but it is well established and routinely used for judgments from non-reciprocating states.
Neither route is automatic. A judgment debtor can resist registration, or defend the common-law suit, on recognised grounds, including that the original court lacked jurisdiction over the defendant; that the judgment was obtained by fraud; that the defendant was not given notice or a fair opportunity to be heard (a breach of natural justice); that enforcement would be contrary to Kenyan public policy; or that the judgment is not final and conclusive. The Act also excludes certain categories altogether — among them matrimonial causes, matters of custody and guardianship, and some tax, penalty and multiple-damages awards — which therefore fall outside the registration regime.
Parties to cross-border commercial contracts frequently prefer arbitration precisely because awards travel better than judgments. A foreign arbitral award is enforced in Kenya under the Arbitration Act, No. 4 of 1995, and the New York Convention, to which Kenya is a party — a far wider network than the eight-country judgments list. Recognition can be refused only on the limited Convention grounds, such as invalidity of the arbitration agreement, denial of due process, the award exceeding the scope of the submission, or conflict with public policy. Cap 43 itself also recognises certain arbitral awards that have become enforceable as judgments in their country of origin.
Under the Limitation of Actions Act, the application to register — or the common-law suit — should be brought within six years of the date of the judgment. Letting that period lapse can defeat an otherwise valid claim. In practice, the strategic questions are settled early: which route applies, where the debtor’s assets actually are, and whether an arbitration clause would have given a more portable remedy than a court judgment. For businesses contracting across borders, that last point is a drafting decision worth making before any dispute arises.
Final and conclusive money judgments from a designated superior court of a reciprocating country — currently Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the United Kingdom and Rwanda.
By a fresh common-law suit on the judgment as a debt, as confirmed in Jayesh Hasmukh Shah v Navin Haria [2016] eKLR, rather than by registration.
Lack of jurisdiction of the original court, fraud, denial of a fair hearing, that the judgment is not final and conclusive, or that enforcement would be contrary to Kenyan public policy.
Often, yes. They are enforced under the Arbitration Act 1995 and the New York Convention, whose membership is far wider than the eight-country reciprocating list, subject to limited refusal grounds.
Generally six years from the date of the judgment, under the Limitation of Actions Act.
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Our dispute resolution team advises on the registration and enforcement of foreign judgments and arbitral awards in Kenya.
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Disclaimer: This article has been prepared for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute a lawyer-client relationship. Nothing in this article is intended to guarantee, warranty, or predict the outcome of a particular case and should not be construed as such a guarantee, warranty, or prediction. The authors are not responsible for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this article and in no event shall be liable for any damages resulting from reliance on or use of this information. Readers should take specific advice from a qualified professional when dealing with specific situations.
