KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
9.5 Enforcement of a Judgment From a Foreign Country A foreign judgment can be directly enforced in Kenya under the Foreign Judgments (Reciprocal Enforce- ment) Act if it originates from a “designated reciprocat- ing country” as declared by the Act. Such judgment, once registered in the High Court, is enforceable in the same manner as a domestic judgment. If the judgment is from a country that is not a desig- nated reciprocating state, the decree holder must file a fresh suit in Kenya based on the foreign judgment. In such proceedings, the foreign judgment is treated as evidence of the debt or obligation owed, subject to the defences available under Kenyan law. Courts and tribunals are established by the Constitu - tion and statutes which also outline their appellate pathways and mechanisms. The Supreme Court established under Article 163 of the Constitution hears appeals from the Court of appeal in matters certified as being of general pub- lic importance and in matters involving constitutional interpretation. The Court of Appeal established under Article 164 of the Constitution hears appeals from the High Court and the specialised courts of equal jurisdiction such as the Environment and Land Court and the Employ- ment and Labour Relations Court. Appeals from subordinate courts are first heard by the High Court and only further appeals on points of law proceed to the Court of Appeal. The High Court and the specialised courts of equal jurisdiction such as the Environment and Land Court and the Employ- ment and Labour Relations Court have jurisdiction to hear appeals from subordinate courts and tribunals, with their scope limited to their respective areas for specialisation. 10. Appeal 10.1 Levels of Appeal or Review to a Litigation
The Subordinate Courts established under Article 169 of the Constitution of Kenya do not have appellate jurisdiction. On the powers of review, the Supreme Court has lim- ited power to review its own decisions as its decisions are final and binding, except in exceptional circum- stances where a review is permitted under Section 21 of the Supreme Court Act. The Court of Appeal has the power to review its own decisions under specific circumstances, as provided by the Court of Appeal Rules and common law prin- ciples. The High Court has broader review powers compared to the appellate courts. In all circumstances, the grounds for review are either that: • there is a clerical or arithmetical mistake in the judgment or order; • an error is apparent on the face of the record; or • there is a discovery of new evidence that could not have been obtained earlier with reasonable dili - gence. 10.2 Rules Concerning Appeals of Judgments Appeals from judgments are governed by the rules of the court to which the appeal is being instituted such as the Civil Procedure Rules, the Court of Appeal Rules and Supreme Court Rules. Generally, a party seeking to appeal is required to ensure timely filing of the requisite notice of appeal, memorandum of appeal and the record of appeal. Sometimes leave (permission) to appeal must be sought before commencing the appeal. Appeals from Court of Appeal judgments distinguish between appeals as of right (no leave needed) and those requir- ing certification. Some of the circumstances under which an appeal may be allowed and judgment of the lower court set aside include errors of law, errors of fact, procedural irregularities or jurisdictional errors where the lower court lacked jurisdiction or exceeded its powers.
572 CHAMBERS.COM
Powered by FlippingBook