Michael Sullivan KC, OGW appeared in the High Court of Kenya, Court of Appeal of Kenya and the Supreme Court of Kenya in HCC No 1 of 2020, Civil Appeal No 70 of 2020 and Petition Application No E 012 of 2023 respectively obtaining registration under the Foreign Judgments (Reciprocal Enforcement) Act, CAP 43 of the Laws of the Republic of Kenya of a judgment delivered by the High Court of England and Wales in a commercial dispute and in resisting appeals in relation thereto.
The purpose and philosophy of the Act is towards recognition and enforcements of foreign judgments, rather than re-opening and re-litigating in Kenya matters finally and conclusively determined by a superior court of a reciprocating State. The United Kingdom has been recognised as one of eight Commonwealth States whose legal systems being based on the Common law system is entitled without more to recognition of the judgments of its superior courts. To justify the setting aside of a recognised judgment, an application must come within the limited parameters of section 10 (2) and (3) of the Act which itself would not require reopening of the judgment and re-evaluating the merits of the case. In the instant case the applicants did not do so. As the contract was subject to English law, there was no requirement of the English High Court to apply the Constitution of Kenya or the laws of Kenya in the proceedings before it. Moreover, in that the Act gave extra-territorial effect to the laws and judgments of another State, that was an exercise in legislative sovereignty, not a diminution of it. Further, the enforcement of the English judgment would not be contrary to public policy and an infringement of the right to a fair trial under Article 50 (1) of the Constitution of Kenya as the fact that the Deputy Judge sitting in the London Commercial Court is a member of the same barristers’ Chambers as counsel for the Claimant did not give rise to an imputation of bias.