[2017] KEHC 2161 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

MISC. CASE NO. 454 OF 2016

IN THE MATTER OF FOREIGN JUDGEMENTS (RECIPROCAL ENFORCEMENT) ACT,

AND

IN THE MATTER OF THE JUDGEMENT DELIVERED ON THE 8TH DAY OF JULY, 2016

AT THE HIGH COURT OF TANZANIA AT DAR ES SALAAM,(LAND CASE

NO.81 OF 2015)BY HONOURABLE JUSTICE L. ARUGANI

BETWEEN

QUALITY CENTRE LIMITED..............................JUDGEMENT CREDITOR

VERSUS

USL (T) LIMITED [Formerly known as Uchumi

Supermarkets (Tanzania) Limited.............1st JUDGEMENT DEBTOR

UCHUMI SUPERMARKETS LIMITED...........2nd JUDGEMENT DEBTOR

RULING

1. By dint of the provisions of The Foreign Judgements (Reciprocal Enforcement) Act (hereinafter the Act), this Court, on 6th October 2016, recognized the Judgement entered in favour of Quality Centre Limited (the Judgement Creditor) in High Court of Tanzania at Dar es salam Land Case No.81 of 2015 (Quality Centre Limited vs. USL (T) Limited (Formerly known as Uchumi Supermarkets (Tanzania Limited and Uchumi Supermarkets Limited). A Decree dated 26th October 2016 followed.

2. Two applications have now arisen. In the Notice of Motion dated 2nd December 2016 the Judgement Creditor seeks the following Order:-

2. THAT this Honorable Court be pleased to grant the Applicant/Judgement Creditor leave to execute the decree given by this Honorable Court on 6th October 2016, and issued on 26th October 2016, before taxation.

3. That Motion was resisted and Uchumi Supermarkets Limited (the 2nd Judgement Debtor) filed its own Motion on 5th April, 2017 for the following Order:-

2. THAT the proceedings before the High Court of Kenya at Nairobi Milimani Commercial Courts be stayed pending the hearing and full determination of the 1st and 2nd Respondent’s application dated 31st March, 2017 currently pending before the High Court of Tanzania at Dar es Salaam seeking orders among others to set aside the ex parte Judgement issued on 8th July, 2016 by the High Court of Tanzania at Dar es Salaam.

4. This Court will deal with this latter Application first. In an Affidavit in support thereof, Caroline Gakii Mungania swore an Affidavit on even date. She explains that through an Application presented to Court on 4th April, 2017, the Judgement Debtor has filed an Chamber Summons in the Tanzanian Court (the Original Court) seeking the setting aside of the Exparte Judgement made therein on 8th July 2016. The Judgement Debtor want that Application to be given a chance and avers that it will occasion it great prejudice unless Stay is granted here.

5. The Judgement Creditor has responded to that Motion through an Affidavit sworn by Anbalagan Thirumal on 15th May 2017. That on 14th November 2016, the Judgement Debtor was served with a 14 day Notice of Entry of Judgement together with a copy of Decree. That the Judgement Debtor has sought to challenge the Judgement of the original Court some 8 months after its delivery and over four (4)months after the Notice of Entry of Judgement. The Judgement Creditor sees undue delay and is concerned about the timing of the two Applications. In addition the Judgement Creditor makes the point that the original Court has neither set aside the Judgment nor stayed its execution.

6. The Court has given due regard to the submissions of Counsel and takes the following view.

7. The application invites this Court to discuss the Provisions of the Act in respect to stay of a registered Foreign Judgement. Section 8(4) of The Act provides:-

“Unless the High Court otherwise orders, execution upon a registered judgment shall be stayed—

(a) in the case of an application made ex parte, until the expiration of fourteen days from the date on which the judgment debtor is served with a notice of registration under section 5(3) or such extended period as the court may order; or

(b) where an application that the registration be set aside is made undersection 10 or section 11, until the application is finally determined.

8. Subsection (b) would be more relevant to the circumstances herein and it leads me to consider the Provisions of Section 10 and 11.

Section 10 provides:-

(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—

(a) the judgment is not a judgment to which this Act applies;

(b) the judgment was registered in contravention of this Act;

(c) the courts of the country of the original court had no jurisdiction to adjudicate upon the cause of action upon which the judgment was given;

(d) the judgment debtor did not appear in the original court and the jurisdiction of that court was based upon an agreement by the judgment debtor to submit to its jurisdiction which is invalid under the rules of private international law of Kenya;

(e) the cause of action upon which the judgment was given had at the date of that judgment been the subject of a final and conclusive judgment of a court having jurisdiction to adjudicate upon that cause of action;

(f) the matter in relation to which the judgment was given had, subsequent to the date of that judgment, and as a result of proceedings instituted prior to the institution of the proceedings in the original court, become the subject of a final and conclusive judgment of a court in Kenya which is irreconcilable with the judgment of the original court;

(g) the judgment debtor, being the defendant in the original proceedings—

(i) was not duly served with the process of the original court; or

(ii) notwithstanding that he was duly served in conformity with the law of the country of that court, did not receive notice of those proceedings in sufficient time to enable him to defend the proceedings; and

(iii) did not appear or appeared only for one or more of the purposes set out in section 4(2)(b);

(h) the judgment was obtained by fraud, other than fraud which was, or could have been, put in issue by the judgment debtor in the proceedings in the original court or on appeal therefrom;

(i) there are provisions of the law of Kenya which, by virtue of the rules of private international law of Kenya, would have been applicable notwithstanding any choice of another system of law by the judgment creditor and the judgment debtor, had the proceedings been brought in the High Court, and the judgment disregards those provisions in some material respect;

(j) it was necessary for the original court, in order to give its judgment, to decide a question relating to any matter specified in paragraphs (c) to (k) of section 3(3) and the decision is different from that which the High Court, having applied the rules of private international law of Kenya to that question, would have reached;

(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;

(l) the judgment debtor is a person who, under the rules of public international law, is entitled to immunity from the jurisdiction of the High Court;

(m) the rights under the judgment are not vested in the person by whom the application for registration was made;

(n) the enforcement of the judgment would be manifestly contrary to public policy in Kenya.

(3) An application may be made under subsection (1) to set aside the judgment to the extent that its enforcement would require payment of sums in excess of monetary limits upon liability imposed by any statute of Kenya which applies under the rules of private international law of Kenya.

(4) Where the High Court is satisfied, on an application made by or on behalf of a judgment debtor, that the sums, including costs, awarded under a registered judgment are substantially in excess of those which would have been awarded by the High Court on the basis of the findings of law and fact made by the original court, had the assessment of those sums been made in proceedings before the High Court, the High Court may set aside the judgment to the extent of that excess.

9. While Section 11 reads:-

(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.

10. This Court is urged by the 2nd Judgement Debtor to stay these proceedings (which I suppose includes Execution proceedings) pending the hearing of its Application before the original Court. The Application before the original Court which is dated 31st March 2017 has two related limbs. It seeks an extension of time for filing an Application to set aside the original Judgement and secondly an order for setting aside.

11. The Judgement Creditor on the other hand argues that an order for Stay would not be available to the Judgment Debtor as it has not moved Court to set aside the recognized Judgement.

12. As I turn to consider these rival positions I need first to distinguish an Application to set aside the original Judgement and one to set aside the recognized Judgement. The original Judgement in this instance refers to the Judgement made in the original Court (herein The High Court of Tanzania at Dar es Salam). The recognized Judgement is that original Judgement as recognized by this Court on 6th October 2016.

13. The Provisions of Stay of recognized Judgements as set out in paragraph 8(4) of The Act are in my view generous to a Judgment debtor. In the wording of those Provisions the Court, unless it otherwise orders, is obliged to grant stay in the circumstances set out in subsections (a) and (b). So that as a General rule, in respect to subsection (b), stay will as a matter of course be granted once an application that the registration be set aside is made under section 10 or section 11, until the Application is finally determined.

14. The rationale would be, I suppose, that a Judgement Debtor would be prejudiced and unduly inconvenienced if execution which is eventually set aside, was to be allowed to proceed against him.

15. Now a Section 11 Application is wide and allows a Judgement Debtor to apply for setting aside of the registration of a Judgement where an Appeal is pending against the original Judgement (11 (i)(a)), or where there the Judgement Debtor is entitled to and intends to appeal (11 (i)(b). And lastly where the matter in the original judgment is the same as that in respect to which proceedings were instituted earlier in Kenya and are pending (11(i)(c).

16. Under the interpretation provisions of Section 2 of the Act, Appeal means,

“proceedings by way of application for the discharge of setting aside of a Judgment or for a new trial or a stay of execution”

It would therefore be that the Judgement Debtor’s Application before the original Court seeking leave for extension of time to set aside the original Judgement and to set aside the Judgement are deemed to be an intention to appeal and appeal respectively.

17. Having taken that step, then all that the Judgement Debtor needed to do was to apply for the setting aside of the registered Judgement under the provisions of Section 11(i) (b) and this Court may have had no difficulty granting it the stay sought. But in so far as the Judgement Debtor has not moved this Court for setting aside then the Court is unable to favour it with a stay order. The Judgement Debtor only has itself to blame for not taking advantage of the rather straightforward and generous Provisions of the Act. The prayer for stay is declined.

18. Let me now determine the Judgement Creditors application for leave to execute the Decree given by this Honourable Court on 6th October 2016 and issued on 26th October 2016 before Taxation.

19. This Application finds a home under Section 94 of The Civil Procedure Act:-

“Where the High Court considers it necessary that a decree passed in the exercise of its original civil jurisdiction should be executed before the amount of the costs incurred in the suit can be ascertained by taxation, the court may order that the decree shall be executed forthwith, except as to so much thereof as relates to the costs; and as to so much thereof as relates to the costs that the decree may be executed as soon as the amount of the costs shall be ascertained by taxation”

An objective of this requirement is that the Judgment Debtor should not be vexed or burdened by multiple execution.

20. It is stated by Anbalagan Thirumal, in an Affidavit sworn on 2nd December 2016 in support of the Application,that the Applicant has abandoned its Bill of Costs that was to be filed in the original Court. If the Judgement Creditor will not be pressing for Costs that there would be no reason not to grant that order as the Decree as it is now stands is the whole and complete Decree. Costs will never be part of it.

21. In granting the Judgement Creditors’ Application this Court is minded that the Registered Judgement has neither been set aside nor stayed.

22. These are the orders of the Court:-

22. 1. The Notice of Motion of 5th April, 2017 is hereby dismissed with costs.

22. 2. The Notice of Motion of 2nd December 2016 is allowed with costs to the Judgement Creditor.

Dated, Signed and Delivered in Court at Nairobi this 5th day ofOctober, 2017.

F. TUIYOTT

JUDGE

PRESENT;

Cherono for Judgement Creditor

Wanjala for Judgement Debtor

Alex - Court clerk