https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9151

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **COMMERCIAL & TAX DIVISION** **MISCELLANEOUS APPLICATION NO. E358 OF 2026** **IN THE MATTER OF RECOGNITION OF THE FOREIGN COURT ORDER GRANTED BY THE COURT OF MERCANTILE INSTANCE OF SEVILLE (COURT 3) SITTING AT SEVILLE, SPAIN IN FAVOUR OF COX ENERGY GROUP** **COX T& I.S.L ……………………………………… EX PARTE APPLICANT** **RULING** 1. Before me is an application dated 26th March, 2026, filed by the Applicant under Order 24, rule 8 of the Civil Procedure Rules seeking an order for recognition of an order issued by the court of Mercantile Instance of Seville (Court 3) on 18th April, 2023, which allowed the conveyance of the production unit of Instalaciones Inabensa S.A to Cox Energy Group. 2. The gist of the application is that Instalaciones Inabensa S.A. was the original holder of an arbitral award issued on 30th July, 2019, against Kenya Electricity Transmission Company Limited (KETRACO) arising from disputes under EPC Contracts Nos. KETRACO/PT/007/2012-Lot-A and KETRACO/PT/013/13-Lot-B. The award was subsequently recognized and adopted as a decree of the High Court in Nairobi HCCOMM Misc. Application No. E445 of 2019 on 15th December, 2021, thereby rendering it enforceable in Kenya. 3. Following the issuance and recognition of the arbitral award, insolvency proceedings were commenced against Instalaciones Inabensa S.A. in Spain. Under Spanish insolvency law, such proceedings permit the restructuring, sale, acquisition or transfer of a company's assets and rights as part of efforts to facilitate continued operations or to manage the insolvency process. As Instalaciones Inabensa S.A. formed part of the larger Abengoa Group of companies, its assets and rights became subject to the insolvency proceedings conducted before the Court of Mercantile Instance of Seville (Court 3) in Spain. 4. According to the Applicant, on 9th January, 2023, the Cox Energy Group submitted an offer before the Spanish Court for the acquisition of production units within the Abengoa Group of which Instalaciones Inabensa S.A. is part. The Applicant contends that the arbitral award against KETRACO formed part of the production unit and assets belonging to Instalaciones Inabensa S.A. and was therefore included among the rights contemplated in the proposed acquisition. 5. The Applicant further states that, by an Order dated 18th April, 2023, the Court of Mercantile Instance of Seville approved the conveyance of the production units of the Abengoa Group including the rights embodied in the arbitral award to Cox Energy SLU. Pursuant to that court sanctioned conveyance, a Deed dated 28th July, 2023, was executed through which C A Infraestructuras T & I, SLU, a member of the Cox Energy Group, acquired by way of subrogation all rights arising from the arbitral award previously held by Instalaciones Inabensa S.A. 6. The Applicant avers that following the acquisition, C A Infraestructuras T & I, SLU assumed responsibility for pursuing recovery of the decretal amount due from KETRACO. It is further deposed that the company subsequently changed its name from C A Infraestructuras T & I, SLU to COX T&I S.L., and that by virtue of the acquisition and subsequent name change, COX T&I S.L. is now the lawful holder of the rights arising from the arbitral award and the corresponding decree of the High Court. 7. It is therefore the Applicant's position that the Spanish Court validly authorized the transfer of the rights in the arbitral award and that the Applicant has succeeded to those rights through the conveyance approved in the insolvency proceedings. Consequently, the Applicant seeks recognition of the Order issued by the Court of Mercantile Instance of Seville so as to regularize its status as the lawful holder of the arbitral award and decree for purposes of enforcement and recovery. The Applicant contends that such recognition will enable this court to give effect to the conveyance sanctioned by the foreign court and facilitate the orderly continuation of recovery proceedings. ***Analysis and Determination*** 1. I have considered the application, the supporting affidavit, and annexures thereto. The centra issue for determination is **whether this Court should recognize the Order issued by the Court of Mercantile Instance of Seville (Court 3), Spain on 18th April, 2023, and the consequent devolution of interest arising therefrom** 2. The Applicant seeks recognition of an Order issued by the Court of Mercantile Instance of Seville (Court 3), Spain on 18th April, 2023. The order was issued within insolvency proceedings involving companies within the Abengoa Group, including Instalaciones Inabensa S.A. which approved the conveyance of certain production units and rights to entities within the Cox Energy Group. This court has therefore been called upon to give effect to a foreign judicial act that altered the ownership of rights already recognized within this court’s jurisdiction. 3. The legal basis for such recognition lies in the doctrine of comity of nations, the Court's inherent jurisdiction under section 3A of the Civil Procedure Act and the provisions of Order 24, rule 8 of the Civil Procedure Rules which recognize that interests in litigation may devolve upon other persons by operation of law, assignment or transmission. The rationale underlying these principles is that courts ought, where possible, to facilitate rather than frustrate the orderly administration of justice across jurisdictions particularly where commercial and insolvency matters transcend national boundaries. 4. The importance of international judicial cooperation in insolvency matters was recognized by the High Court in ***In re Cooperativa Muratori and Cementisti – CMC Di Ravenna (Insolvency) [2020] KEHC 10264 (KLR)****.* In that case, the court acknowledged that modern insolvency proceedings frequently involve assets, creditors and legal rights situated in multiple jurisdictions and that courts should, where appropriate, assist foreign insolvency proceedings through recognition and cooperation. Although the facts of that case concerned recognition of foreign insolvency representatives, the underlying principle remains applicable to the present matter. 5. The evidence before this Court demonstrates that Instalaciones Inabensa S.A. was the original beneficiary of an arbitral award dated 30th July, 2019, issued against KETRACO. The award was subsequently recognized and adopted as a decree of the High Court on 15th December, 2021. The evidence further shows that insolvency proceedings were commenced in Spain in respect of companies within the Abengoa Group including Instalaciones Inabensa S.A. As part of those proceedings, the Court of Mercantile Instance of Seville approved the transfer of production units belonging to the insolvent entities. 6. Significantly, the Deed dated 28th July, 2023, goes beyond merely referring to a transfer of assets in general terms. The deed expressly identifies litigation rights falling within Annex 4.7 and specifically refers to the dispute involving Instalaciones Inabensa and KETRACO. More importantly, it expressly includes: *"****All the credit rights derived from the Arbitration Award issued in favour of Inabensa in Kenya dated on July 30th, 2019 as a result of the arbitration initiated against Kenya Electricity Transmission Company (KETRACO)."*** 1. This provision removes any uncertainty as to whether the arbitral award formed part of the assets transferred pursuant to the insolvency process. The deed clearly identifies the award, the parties to the dispute, the date of the award and the rights arising therefrom. 2. The evidence further demonstrates that the purchaser was subrogated into the procedural position previously occupied by Instalaciones Inabensa S.A. in respect of existing litigation and claims. Consequently, the transfer extended not merely to the economic benefit of the award but also to the legal standing necessary to pursue recovery. I further note that the deed expressly states that CA Infraestructuras T&I SLU became the legitimate owner of the rights arising from the identified credit. Thereafter, documentary evidence was produced showing that CA Infraestructuras T&I, SLU changed its name to COX T&I S.L albeit in documentation presented in the Spanish language. 3. Based on the foregoing, this Court is satisfied that the documentary evidence establishes a complete chain of transmission from the original award holder, Instalaciones Inabensa S.A., to the present Applicant. The transfer was not effected through a private arrangement unsupported by judicial oversight. Rather, it arose from insolvency proceedings supervised and sanctioned by a competent foreign court. 4. There is no evidence that the Spanish proceedings were irregular, fraudulent, contrary to natural justice or otherwise offensive to Kenyan public policy. There is no evidence suggesting that another entity retains a competing claim to the rights arising from the arbitral award. 5. This Court must also consider whether recognition would occasion any prejudice to the judgment debtor. In this Court’s view, it would not. Recognition of the Spanish Court Order would not alter the substance of the arbitral award, vary the decree issued by this Court, increase the obligations of the judgment debtor or create any new liability. Its sole effect would be to identify the person now entitled to enjoy the fruits of the decree. The judgment debtor remains liable only to the extent already determined by the arbitral tribunal and subsequently recognized by this Court. While the identity of the creditor has changed through operation of the insolvency process the nature and extent of the debt remain unchanged. 6. In the circumstances of this case, I find no legal or public policy impediment to recognizing the Applicant as the successor in title to Instalaciones Inabensa S.A. in respect of the arbitral award dated 30th July, 2019, and the decree issued by this Court on 15th December, 2021. 7. Accordingly, I allow the present application dated 26th March, 2026. There shall be no orders as to cost. 8. Orders accordingly. ***Delivered, Dated and Signed virtually this 25th day of June, 2026*** **RHODA RUTTO** **JUDGE** **In the presence of;** **Court Assistant: Wabwire** **Ma. Nyangweso holding brief for Mr. Muthui for exparte Applicant**