Nyambura & Another v Three Way Shipping Group Limited (Miscellaneous Cause 120 of 2023) [2024] UGHCCD 143 (6 September 2024)

# **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(CIVIL DIVISION)**

# **MISCELLANEOUS CAUSE NO. 120 OF 2023**

*(In the matter of a Judgment of the Foreign Judgments (Reciprocal Enforcement) Act Cap 9- Arising from the Chief Magistrates Court of Naivasha in the Republic of Kenya)*

#### **1. MARY NYAMBURA MUKUHU:::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **2. GRACE WANJIRU NYAMBURA**

*(SUING AS LEGAL REPRESENTATIVE OF THE ESTATE OF PAUL NYUTU, STEVEN MWAURA & JOHN MUKUHA WANJIRU)*

#### **VERSUS**

**THREE WAY SHIPPING GROUP LIMITED :::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. JUSTICE SSEKAANA MUSA**

# *RULING*

This Application was brought under Section 3 of the Foreign Judgments (Reciprocal Enforcement) Act Cap 9 and Rule 4 of the Foreign Judgments (Reciprocal Enforcement) Rules SI 9-1 and 52 of the Civil Procedure Rules S171-1 seeking the following Orders;

*1. An Order issues for the registration of the Judgment of the Chief Magistrate Court of Naivasha in the Republic of Kenya vide Civil Suit No. 279 of 2017; Mary Nyambura Mukuha & Grace Wanjiru Nyambura (Suing as Legal Representative of the Estate of Paul Nyutu,* *Stephen Mwaura & John Mukuha v Three Way Shipping SVS Group Limited.*

### *2. Costs to the application be provided.*

This application is supported by an Affidavit of Jane Nyamuringa Ruigu (an Advocate of the High Court of Kenya) which sets out the grounds in support of the application;

- 1. The applicants Miss Mary Nyambura Mukuha and Mrs Grace Wanjiru Nyambura are the Judgment Creditors in Civil Suit No. 279 of 2017 Mary Nyambura Mukuha & Grace Wanjiru Nyambura (Suing as Legal Representatives of the Estate of Paul Nyutu, Stephen Mwaura & John Mukuha Wanjiru versus Three Way Shipping SVS Group Limited. - 2. The Judgment Debtor is Three Ways Shipping Group Limited, a company fully incorporated in Uganda, their last known place of business is Plot 87 Jinja Road, Kampala Uganda Opposite Jinja Road Police Station. - 3. That Paul Nyutu, Stephen Mwaura & John Mukuha Wanjiru died in the negligent accident caused by an agent of Three Way Shipping Group Limited, giving rise to Naivasha Chief Magistrate's Court (Kenya) Civil Suit No. 279 of 2017 filed by the applicants in their representative capacity as administrators of the Estates of the deceased persons. (The suit was first filed in High Court of Kenya at Naivasha in 2015 before it was transferred to Chief Magistrate Court of Naivasha in 2017) - 4. That the summons to file a defence in the said Civil Suit No. 279 of 2017 were issued on the 22nd June 2018 and on the 13th & 20th September

2018 and the defendant/Judgment debtor was served and an affidavit of service was filed in the trial court.

- 5. The defendant/judgment debtor failed to enter appearance and an interlocutory judgment was entered against it on the 4th day of March 2020 and the matter proceeded by way of formal proof. The court made the following awards in respect of the different deceased persons; Paul Nyutu-Kshs 1,800,000; Stephen Mwaura Ksh 1,880,000; John Mukuha 2,219,200 and costs and interest at court rates. - 6. That the applicants are entitled to enforce judgment in Civil suit No. 279 of 2017 and the total amount due from the Judgment as at 30th April 2023 inclusive of the decretal sum, costs and interest from the date of judgment totals Kshs 8,607,615/= (UGX 238,204,903.59) - 7. That as at the date of this application the judgment in Civil Suit No. 279 of 2017 has not been satisfied in part or at all. - 8. That at the date of the application the judgment can be enforced by execution in the original court. - 9. That if the judgment is registered the registration would not be liable to be set aside under section 5 of the Foreign Judgments (Reciprocal Enforcement) Act.

# *ISSUES*

- *1. Whether this judgment can be registered and enforced in Uganda?* - *2. What the remedies available to the parties?*

The applicant was represented by Counsel Lastone Gulume while the respondent was not represented.

Court directed the applicant to file written submissions and they have been considered by this court in coming up with its decision.

# *Whether this judgment can be registered and enforced in Uganda?*

Counsel for the applicant submitted that the position of the law is that judgment creditor may apply to the High Court at any time after the date of judgment to have the judgment registered and the court upon such application will issue an order that the judgment be registered provided it is in tandem with the law (see section 3 of foreign Judgment (Reciprocal Enforcement) Act

Counsel further submitted that a judgment of a competent court whether local or foreign is valid until set aside. Where a foreign court has adjudicated upon a claim and issued a valid judgment it must be enforced. The foreign judgments may be recognized based on bilateral or multilateral treaties or conventions or other international instruments.

The applicants counsel submitted that the subject judgment was issued by a competent Kenyan court, there is no pending appeal, Kenya has reciprocal arrangements with Uganda and it being a commonwealth court is vested with jurisdiction to recognize and register the Judgment as demonstrated in *Volcano Holdings Ltd v All Africa Logistics Solutions Ltd HCMC No. 230 of 2021.*

Counsel further submitted that under the doctrine of obligation and comity, a judgment of a foreign court creates a legal debt on the judgment debtor and thus the doctrine permits court to recognize the proceedings of any court provided it is not against public policy.

# *Analysis*

Where a foreign court has adjudicated upon a claim and issued a valid judgment *"a legal obligation arises to satisfy that claim in a country where the judgment needed to be enforced. Such a recognition is accorded not as an act of courtesy but on consideration of basic principle of justice, equity and good conscience."* See *ABSA Bank Uganda Ltd (Formerly Barclays Bank Uganda Ltd) v Uchumi Supermarkets PLC (Civil Case E 316 of 2021) [2021] KEHC 14 (KLR)*

The principle of sovereignty of the state's legal system entails that a judgment in one jurisdiction should not be automatically enforceable in another. The enforcement of foreign judgments is made pursuant to compliance with their respective requirements of registration in a reciprocating country. Therefore, a judgment may be registered under the applicable statute if the procedural requirements and the conditions ensuring its validity and integrity are satisfied.

# **Section 3(1) of the Foreign Judgments (Reciprocal enforcement) Act cap 9 states;**

*"A person, being a judgment creditor under a judgment to which this Part of this Act applies, may apply to the High Court at any time within six years after the date of the judgment or, where there have been proceedings by way of appeal against the judgment, after the date of the last judgment given in those proceedings, to have the judgment registered in the High Court, and on any such application the court shall, subject to proof of the prescribed matters and to the other provisions of this Act, order the judgment to be registered; except that a judgment shall not be registered if at the date of the application— (a) it has been wholly satisfied; or (b) it could not be enforced by execution in the country of the original court".*

# *Rule 2 of the foreign judgment (Reciprocal Enforcement) (General Application) Order 35/2002 states that;*

*"Part ii of the Foreign judgments (Reciprocal Enforcement) Act shall apply to the territories of the commonwealth and to judgments obtained in the Courts of those territories as it applies to foreign Countries".*

It is therefore the position of the law as per the cited provisions that a person with a foreign judgment from a Court of competent Jurisdiction and a member of the Commonwealth can apply to this Court to have their judgment registered and have the same effect as a judgment passed in Uganda. Registration is a matter of discretion. The court may order the judgment to be registered if it is just and convenient in all the circumstances of the case to do so.

For a Ugandan court to enforce a foreign Judgment, the High Court of Uganda must first recognize it, and it will do so where such judgment is final, the court that issued it had the necessary jurisdiction to do so and the judgment was not otherwise obtained by fraud or in breach of natural justice or public policy unless a defence to recognition and enforcement is shown to exist, a foreign judgment is enforceable either on the basis of reciprocity or obligation.

*Justice Mwangusya* (as he then was) noted in the case of *Christopher Sales and Another v Attorney General HCCS NO. 9 of 2011* that the laws governing enforcement of foreign judgment based on two theories; *the theory of obligation and reciprocity* which are combined and the theory of comity where the theory of obligation considers that foreign judgments create debt and a liability to pay which reciprocity enjoins the court of one country to recognize and enforce of judgments of another country.

The doctrine of Comity on the other hand was discussed in *JP Morgan Chase Bank v Altos Honos De Mexico US Court of Appeal 2nd Circuit in 2004*, as one focusing on maintaining amicable working relationships between nations, a shorthand of good neighborliness, common courtesy and mutual respect between those who labor in adjoining judicial vineyards where the point of law raised, which if decided in one way would be decisive of litigation.

Foreign judgments may be recognized based on bilateral and multilateral treaties or conventions or other international instruments. The "recognition" of a foreign judgment occurs when the court of one country accepts a judicial decision made by the courts of another "foreign" country, and issues a judgment in substantially identical terms without rehearing the substance of the original suit. See *M/s Semuyaba, Iga & Co Advocates & Another v Attorney General of the Republic of South Sudan & 2 Others HCMA No. 0004 of 2022*

This court takes judicial notice of the fact that Kenya is a Commonwealth country it being a protectorate of Britain. Since the case before hand emanates from Naivasha Chief Magistrates Court which is located in Kenya and was properly seized with jurisdiction to hear and determine a matter beforehand. This was an accident claim in which the three persons were knocked and killed by a trailer with Ugandan Registration No. plates UAL 839N while they were riding a Motorcycle Reg No. KMCA 016P on 27th day of October 2013.

It can be deduced from the facts and the judgment that it was passed by a competent court of the Chief Magistrate court at Mombasa, Kenya which is a commonwealth country having a reciprocal arrangement with Uganda.

The respondent company failed to enter appearance and an interlocutory judgment was entered against it. The matter proceeded by way of formal proof. In the circumstances liability was entered in favour of the plaintiffs against the defendant at 100%. This judgment ought to be registered under the applicable laws since the procedural requirements and the conditions ensuring its validity and integrity are satisfied.

It is not the duty of the court entertaining an application for registration of a foreign judgment to sit on appeal over the decision of the original court that delivered the judgment sought to be registered. The respondent to the judgment sought to be registered is expected to have exercised its right of appeal under the laws of the foreign country. All the court to which the application is made needs to do is ensure that the applicant complies with the requirements of the courts on registration of foreign judgment. See *With Busch Ltd v Dele Power System Plc (2007) 17 NWLR p 1*

According to the judgment entered by the Chief Magistrate of Naivasha-Kenya, the applicants as at 30th April 2023 inclusive of the decretal sum, costs and interest demand Kshs 8,607,615 (UGX 238,204.903.59). This amount has not been satisfied in part or at all.

This judgment under the circumstances was given on merit and is conclusive in absence any appeal by the respondent. See *American Express International Banking v Atul [1990-1994] EA 10*

The judgment and decree delivered by the Chief Magistrates Court at Naivasha vide Civil Suit number 279 of 2017 shall be registered and executed by this honourable court.

The applicants shall meet their costs of this application.

I so order.

*SSEKAANA MUSA 06th September 2024 JUDGE.*