[2022] KEHC 9980 (KLR)

Amra Leasing Limited v Dac Aviation (EA) Limited & 2 others (Civil Suit E147 of 2020) [2022] KEHC 9980 (KLR) (Commercial and Tax) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 9980 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Commercial and Tax

Civil Suit E147 of 2020

DAS Majanja, J

July 19, 2022

IN THE MATTER OF THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT AND IN THE MATTER OF ENFORCEMENT OF JUDGMENT DELIVERED ON 11TH MARCH 2020 IN THE HIGH COURT OF ENGLAND AND WALES, COMMERCIAL COURT, QUEENS BENCH DIVISION IN CLAIM NO. CL-2019-000762

Between

Amra Leasing Limited

Plaintiff

and

Dac Aviation (EA) Limited

1st Defendant

Dac International Aviation Limited

2nd Defendant

Emmanuel Anassis

3rd Defendant

Ruling

1. Before I deal with the matter at hand, a brief background will suffice. After obtaining judgment delivered on March 11, 2020 in the High Court of Justice of England and Wales, Commercial Court, Queens Bench Division, in Claim No. CL-2019-000762, the Plaintiff moved this court for registration and enforcement of the said judgment in Kenya. On May 29, 2020, this court issued an order recognizing and registering the judgment (“the Registration Order’’) under the Foreign Judgment (Reciprocal Enforcement) Act (“the Act”).

2. The Defendants thereafter filed an application dated July 9, 2020 seeking to pay the judgment debt by instalments. By a ruling dated August 29, 2022, I allowed the Defendants to liquidate the judgment debt by instalments.

3. A year later, the Defendants approached the court by an application dated June 28, 2021seeking to set aside the Registration Order on the ground that they had filed an application to set aside the judgment in England. After hearing arguments, I made the following orders on August 27, 2021:(a)The Applicants’ Chamber Summons dated June 28, 2021is adjourned for a period of three (3) months from the date hereof to enable the Applicants prosecute their application to set aside the judgment of the High Court of Justice England & Wales, Commercial Court, Queens Bench Division, in Claim No. CL-2019- 000762 delivered on March 11, 2020. (b)There shall be a stay of execution of the decree of this court dated May 29, 2020.

4. For various reasons, the application pending before the court in England was not heard within time limited by the order of August 27, 2021. The Defendants therefore filed the Notice of Motion dated May 10, 2022 seeking, inter alia, the following order:[4] That the Court be pleased to reinstate/enlarge its Order given on August 27, 2021 and issued on 3/08/2021 staying execution of the ruling/Order of this Court dated 29/05/2020 recognizing and registering the judgment of the High Court of Justice England & Wales, Commercial Court, Queens Bench Division, in Claim No. CL-2019-000762 delivered on March 11, 2020 against the Defendants herein as a Decree of this Court an all consequential orders and proceedings arising therefrom pending the hearing and determination of the Defendants/Applicant’s application to set aside the judgment in default of defence in the said foreign court.

5. After hearing the parties on May 16, 2022, I ordered as follows:Having regard to section 11 of the Foreign Judgment (Reciprocal Enforcement) Act and the ruling I delivered where I was prepared to give the Defendants three months to prosecute its application in England before considering whether to set aside the foreign judgment, I propose to once again give the Defendants time to prosecute their application since the date for the application is already fixed. This matter will be mentioned on a date fixed after June 16, 2022.

6. When the matter came up for mention on July 8, 2022, counsel for the Plaintiff indicated that the application to set aside the default judgment in England had been determined in its favour. It filed an affidavit sworn on July 13, 2022 by Paul Clark, its Leasing Manager, stating that the court in England heard that the application seeking to set aside the default judgment on June 16, 2022 and declined to set it aside by the judgment dated and delivered on the same day; AMRA Leasing Limited v DAC Aviation (EA) Limited, DAC International Aviation Limited and Emmanuel Anassis [2022] EWHC 1718 (Comm). The Plaintiff asserts that following delivery of the judgment, the Defendants were entitled to appeal to the Court of Appeal within 21 days which lapsed on July 7, 2022 without an appeal being filed.

7. The Defendants filed an affidavit sworn on July 15, 2022 by Peter Muga, the 1st Defendant’s General Manager. They accepted that the court in England, dismissed its application to set aside the default judgment. They state that on June 17, 2022, their lawyers applied for copies of the proceedings for purposes of lodging an appeal from the said decision which they were able to obtain 3 days before the deadline to appeal after the judge approved the proceedings on July 4, 2022. Since the time was too short to prepare an appeal, their lawyers made an application for extension of time on July 6, 2022 and at the same time informed the Plaintiff’s lawyers.

8. The Defendants state that their avenue for appeal in England has not been exhausted. They contend that the application for extension of time has high chances of success since the cause of delay is the result of the court’s own procedures and not the parties’ fault. The Defendants pray that the proceedings before this court be stayed until the appeal is heard and determined.

9. The issue argued by counsel for the parties, is whether the court should stay or set aside the Registration Order in light of the dismissal of the application to set aside the default judgment by the court in England. Resolution of this issue turns on the interpretation of the Act more particularly sections 2, 10 and 11 which, in part, states as follows:2. For the purposes of this Act—“appeal” means proceedings by way of application for the discharge or setting aside of a judgment or for a new trial or a stay of execution;10. Setting aside(1)Where a judgment has been registered under this Act an application may be made by the judgment debtor that the judgment be set aside on any of the grounds set out in subsection (2) or (3), and if the High Court is satisfied that any of those grounds has been established it shall set aside the registration of the judgment.(2)The grounds upon which a registered judgment may be set aside are that—--------(k)the judgment has been taken on appeal, and reversed or discharged or otherwise set aside, in a court of the country of the original court;-----------11. Effect of appeals, etc.(1)An application may be made by or on behalf of the judgment debtor to set aside the registration of a judgment on the ground that—(a)an appeal is pending against the judgment; or(b)he is entitled and intends to appeal against the judgment; or(c)the matter in relation to which the judgment was given is the same as that in respect of which proceedings, instituted prior to the institution of the proceedings in the original court, are pending in a court in Kenya.(2)Where the High Court is satisfied that the grounds specified in subsection (1)(a) or (b) are established, it may, on such terms as it thinks just, set aside the registration or adjourn the application until the expiration of such period as appears to the High Court to be reasonably sufficient to enable the proceedings, and any appeal therefrom to a competent tribunal, to be disposed of. [Emphasis mine]

10. Counsel for the Defendants submits that based on the evidence they have provided in their supporting deposition, they intend to appeal against the judgment since they have applied for extension of time to lodge their appeal against the dismissal of their application. Counsel further submits that the judgment the Defendants’ are appealing against falls within section 3(1)(b) of the Act and since the Defendants are appealing against it, the court is entitled to set aside the Registration Order under section 11(1)(a) and (b) of the Act. The Defendants maintain that they have a statutory right of appeal and that it is in the interests of justice and fairness that Registration Order be set aside. They state that the Plaintiff will not suffer any delay or prejudice as the Defendants have acted without delay.

11. The Plaintiff’s case is that the judgment in this case is the one issued the court in England on the March 11, 2020 and duly recognised and registered by this court under the Registration Order. Counsel for the Plaintiff submits that there is no pending appeal against the said judgment nor intention to appeal against it. He points out that what was dismissed was the application to set aside the judgment and the intention to appeal is not against the judgment itself but against the decision by the court in England refusing to set it aside hence section 11(1)(a) and (b) of the Act do not apply to this case. The Plaintiff urges the court to reject any attempt by the Defendants to set aside or stay the Registration Order as the Defendants did not comply with the orders directing it to pay the decretal sum by instalments. It states on the whole, the Defendants’ conduct in the matter does not entitle them to the court’s discretion.

12. In order to set aside a registration order under section 10 of the Act, the Defendants must satisfy the court that there is an appeal against the judgment and that appeal has been allowed and reversed the judgment. Once the judgment has been set aside by the foreign court that issued it, the local court is obliged to set it aside without more. But where there is a pending application before the foreign court to set aside the judgment subject of a registration order, section 11 of the Act comes into play. It allows the court to set aside the registration order if there is an appeal pending against the judgment or the applicant is entitled and intends to appeal against the judgment. Section 2 of the Act adopts a wide definition of appeal. It means proceedings by way of an application for the discharge or setting aside of a judgment or for a new trial or a stay of execution. In this case therefore it is the application to set aside the default judgment filed in the court in England that amounts to an appeal.

13. As to whether the Defendants’ pending appeal against the judgment of the court in England refusing to set aside the default judgment amounts to an appeal for purposes of the Act, I hold that the relevant judgment is the one that is the subject of the Registration Order. This is the default judgment that the was issued by the High Court of England and Wales on March 11, 2020. This finding is buttressed by section 3 of the Act which deals with judgments to which the Act applies. In particular, section 3(1) states as follows:3(1)Subject to subsections (2) and (3), this Act applies with respect to—a.a judgment or order of a designated court in civil proceedings whereby a sum of money is made payable, including an order for the payment of a lump sum as financial provision for, or maintenance of, a spouse or a former or reputed spouse or a child or other person who is or was a dependant of another.---------------------Further section 3(2) provides as follows:3(2)This Act applies to a judgment referred to in subsection (1) if it—(a)requires the judgment debtor to make an interim payment of a sum of money to the judgment creditor; or(b)is final and conclusive as between the parties thereto, but a judgment is deemed to be final and conclusive notwithstanding that an appeal may be pending against it, or that it may still be subject to appeal, in the courts of the country of the original court.

14. The judgment the Defendants wish to appeal against is the judgment declining to set aside the default judgment which does not fall under section 3 of the Act. The judgment contemplated by section 11 of the Act is the judgment subject of the Registration Order. Under section 11(1)(a), I can safely conclude that there is no appeal pending against that judgment. The application to set aside the default judgment in the English court was for purposes of that section deemed to be the appeal as I stated in the ruling dated 16th May 2022 giving the Defendants’ an opportunity to prosecute its “appeal’’.

15. Turning to section 11(2)(b) which deals with whether the Defendants are entitled to and intend to appeal against the judgment, I hold that the application pending before the court in England is for extension of time to lodge an appeal; it is not an appeal against judgment. Even if that application is successful, the appeal pending before the Court of Appeal in England would be an appeal against the judgment dismissing the application to set aside the default judgment. It would not be an appeal against the default judgment itself. I therefore find and hold that the court in England refused to set aside the default judgment hence there is no appeal pending against it nor is there an intention to appeal against it. What is pending before the court in England is an appeal against the judgment refusing to set aside the default judgment.

16. In resolving this matter, this court is confined by the statutory language of sections 2, 10 and 11 of the Act. That language is clear that the appeal or application must be in relation to the judgment which has been registered in Kenya. The application that is pending in the foreign court is a tangential application.

17. Having reached the conclusion that the application for extension of time to lodge an appeal out of time against a judgment refusing to set aside a default judgment pending before the Court in England does not affect the Registration Order, I am now constrained to formally dismiss the application dated May 10, 2022 as the Defendants have not established any grounds to stay or set aside the Registration Order. For avoidance of doubt, the Registration Order remains in force.

18. The Defendants shall pay the costs of these proceedings.

DATED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JULY, 2022. D. S. MAJANJAJUDGECourt Assistant: Mr. M. OnyangoMr Kuyo instructed by Coulson Harney LLP for the Plaintiff/Judgment Creditor.Mr Muhuyu instructed Litoro and Omwebu Advocates for the Defendants/Judgment Debtors.