Jtc (Jersey) Limited v Peter Johan Bonde Nielsen [2015] KEHC 2799 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL & ADMIRALTY DIVISION

CIVIL CASE NUMBER 9 OF 2015

IN THE MATTER OF:                 THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT CAP 43 LAWS OF KENYA

AND

IN THE MATTER OF:                 AN APPLICATION FOR REGISTRATION OF THE JUDGMENT OF THE ROYAL COURT OF THE ISLAND OF JERSEY, SAMEDI DIVISION OBTAINED IN CAUSE NO 2014/155

JTC (JERSEY) LIMITED…..….………………………………....................JUDGMENT CREDITOR

VERSUS

PETER JOHAN BONDE NIELSEN………………………….........................…JUDGMENT DEBTOR

JUDGMENT

INTRODUCTION

The Judgment Creditor’s Ex parte Originating Summons dated 5th January 2015 and filed on 13th January 2015 sought the following orders:-

THAT Judgment given in Cause No. 2014/155 being a Judgment of the Royal Court of the Island of Jersey Samedi Division on 4th July 2014 be registered pursuant to Foreign Judgments (Reciprocal Enforcement) Act.

THAT the costs of this application be paid by the Judgment Debtor and included in the decretal amount.

The court directed that the Applicant serve the Respondent with the application herein. On 16th March 2015, the court directed both parties to file their respective written submissions which they did. The judgment herein was based on the parties’ said written submissions as they did not wish to highlight the same.

THE JUDGMENT CREDITOR’S CASE

The Originating Summons was supported by the Affidavit of Kevin Robert Manning, a Solicitor in the Royal Court of Jersey on behalf of the Judgment Creditor herein. The same was sworn on 10th December 2014. The Judgment Creditor’s Written Submissions were dated 27th March 2015 and filed on 30th March 2015.

It was the Judgment Creditor’s case that it entered into a contract dated 16th October 2009 with the Judgment Debtor where it was agreed that the Judgment Debtor would pay its professional fees. However, the Judgment Debtor defaulted in payment of the said fees whereupon it filed a claim for the recovery of the said fees.

The Judgment Debtor did not respond to the claim and it therefore sought judgement against him. It was its contention that in a judgement of the Royal Court of the Island of Jersey dated 4th July 2014, it was adjudged that the Judgment Debtor herein pay to it Sterling Pounds 43,793. 25 plus interest with effect from 21st May 2014, which sum continued to attract interest.

The Judgment Debtor was categorical that the said judgment was a judgment in line with the provisions of Section 3(1) (a) of the Foreign Judgments (Reciprocal Enforcement) Act Cap 43 Laws of Kenya (hereinafter referred to as “the Act”).

It was also its averment that the said judgment did not fall within the classes of cases in which a judgment could not be registered under Section 3(3) of the said Act and that there be no appeal pending, which time for appeal had expired, the said judgment ought to be registered.

It pointed out that process of the action in Jersey was duly served upon the Judgement Debtor herein and therefore urged the court to enter judgment against him as it had sought in its claim.

THE JUDGMENT DEBTORS’ CASE

In opposition to the said Originating Summons, on 13th March 2015, the Judgment Debtor swore a Replying Affidavit that was filed on 16th March 2015. His undated Written Submissions were filed on 16th April 2015.

The Judgment Debtor contended that whereas leave to file court process was granted on 29th May 2014, he was only served with Summons on 19th June 2014 giving him insufficient time to attend court in Jersey on 20th June 2014. He stated that his advocates wrote to the Judgment Creditor’s advocates complaining that the mode of service upon him was not in accordance with the provisions of the Kenyan Civil Procedure Rules. He stated that instead of taking a fresh hearing date as his advocates had requested, the Judgment Creditor’s advocates sought entry of judgment against him.

It was his averment that the Judgment Creditor had not established a cause of action against him as he was not indebted to it for the decretal sum and therefore prayed that the court dismisses the suit herein with costs to him as it did not have jurisdiction to hear and determine this matter.

LEGAL ANALYSIS

From the evidence that was presented to this court, it was evident that the Judgement Debtor was duly served with court process from Jersey. Although he had contended that the service of the court process was not in accordance with the Kenyan Civil Procedure Rules, he did not espouse on the same.

It was, however, apparent that the matter did not proceed for hearing on 20th June 2014 but that the same was adjourned to give the Judgment Debtor ample time to seek representation in Jersey. Indeed, in the absence of any evidence to the contrary as judgment was entered against him on 4th July 2014, the court could only observe that he had adequate time to defend the claim from the time he was served with Summons in this jurisdiction until the date of the judgment therein in Jersey.

That notwithstanding, this court would not want to delve into the question of whether or not he was properly served as that was not within the jurisdiction of this court to so find. Indeed, what was before this court for determination was whether or not it could register the judgment that was delivered in Jersey.

Before this court could look into the merits of the Judgment Creditor’s claim, it deemed it necessary to establish whether or not it had jurisdiction to grant it the prayers it had sought herein for the reason that jurisdiction is everything and without it, the court has no power to entertain and/or consider the merits or otherwise of a case before it.

The Judgment Debtor was categorical that this court had no jurisdiction to register the judgment that was entered in Jersey as had been sought by the Judgement Creditor as Jersey was not part of the reciprocating countries listed in the Foreign Judgments (Reciprocal Enforcement) (Extension Of Act) Order, 1984 (hereinafter referred to as “the Order”). It further contended that if it was not a reciprocating country, then that reciprocity had to be in accordance with Section 13 of the Act.

On 28th January 2015, this court granted the Judgment Creditor leave to file a Further Affidavit to explain where Jersey was as it was apparent that the same was not included in the aforesaid Order. However, it had not filed the said Affidavit by the time this matter was reserved for the judgment herein and proffered no reason to explain why it failed to do so.

In the absence of such affidavit evidence, on its own motion, the court took judicial notice that Jersey has a separate relationship to the British Crown from the other Crown dependencies of Guernsey and the Isle of Man and that it is not part of the United Kingdom. The court noted that Jersey has an international identity separate from that of the United Kingdom but that the United Kingdom was constitutionally responsible for its defence.

Bearing in mind the countries that are listed in the aforesaid Order, it was clear that Jersey was not part of the reciprocating countries for purposes of the Act and that no extension had been given in line with Section 13 of the Act.

Accordingly, having considered the pleadings, the affidavit evidence, written submissions and the case law in respect of the parties’ case, the court found that it had no option but to down its tools as it had no jurisdiction to entertain and/or consider the merits or otherwise of the Judgment Creditor’s suit.

DISPOSITION

For the aforesaid reasons, the upshot of this court’s judgment was that the Judgment Creditor’s Originating Summons dated 5th January 2015 and filed on 13th January 2015 was not merited and the same is hereby dismissed with costs to the Judgment Debtor.

It is so ordered.

DATED and SIGNED at NAIROBI this 18th day of September 2015

J. KAMAU

JUDGE

READ,DELIVERED andSIGNEDatNAIROBIthis 25th day of September 2015

F. AMIN

JUDGE