ADVOKS GLOBAL · KENYA
Foreign Judgments (Reciprocal Enforcement) Act
10. Setting aside
Edition: 2022-12-31 · In force
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—(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.