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Court of AppealDismissedCivil Appeal No. 324 of 2011

Kamlesh Mansukhlal Damji Pattni v Starwood Hotels & Resorts Worldwide In & 7 others [2016] KECA 261 (KLR)

Court of Appeal
30 September 2016
2,239 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed that English default judgments, served on a contractually appointed agent, can be registered and enforced in Kenya.

What this practically means

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Executive summary

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This Court of Appeal judgment, delivered at Nairobi on 30th September 2016 by Mwilu, Azangalala and Kantai, JJ.A, dismisses an appeal against orders of the High Court (Ransley, Commissioner of Assize) dated 27th August 2001 in H.C.C. No. 1305 of 2001 (OS), whereby an English default judgment was registered in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act. The English judgment had been entered in default against the 2nd to 8th respondents, corporate guarantors under loan and guarantee agreements governed by English law, in which they irrevocably submitted to the exclusive jurisdiction of English courts and appointed an agent in London to receive service of process. The appellant, Kamlesh Pattni, who was not a party to either the English suit or the High Court registration proceedings, contended that service through an agent rather than personally rendered the English judgment a nullity not registrable in Kenya, and attacked the ex parte procedure before the Commissioner of Assize. The Court held that the appellant disclosed no connection to the corporate respondents or how the orders affected him, and no material established such connection, so his locus standi was doubtful. On the merits, service on the duly appointed agent was effective, the judgment remained properly on record having never been set aside in England, and the respondents could not avoid the mode of service they had themselves chosen. The Commissioner had exercised a discretion and no error was detected. The decision below was affirmed; the appeal was dismissed with costs to the 1st respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant, who was not a party to the suit below or the English suit, had locus standi to file the appeal
  2. 2.Whether the English default judgment, entered after service on an appointed process agent rather than by personal service, was a nullity not registrable in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act
  3. 3.Whether the learned Commissioner of Assize erred in granting the registration orders ex parte and in the manner the originating summons was instituted and determined

Key legal issues

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01

Locus standi of a non-party to appeal against registration of a foreign judgment

Holding

The appellant, who filed the appeal in his individual capacity without disclosing any connection to the corporate respondents or how the orders affected him, lacked the necessary locus standi

Reasoning

While a person affected by orders of the High Court may participate by filing an appeal, the appellant's Notice of Appeal did not disclose his relationship with any of the respondents. The respondents were all corporate bodies with power to sue or be sued, and no material was placed before the Court, even at the hearing, showing the appellant owned or was connected to them. Senior counsel for the 1st respondent's complaint that the appellant instituted the appeal without locus standi may well be right.

p. 3
02

Validity of service through an appointed process agent and registrability of the resulting default judgment

Holding

Service on the irrevocably appointed agent was effective; the default judgment was not a nullity and was properly registrable, particularly as it was never set aside in England

Reasoning

The 2nd to 8th respondents, corporations, had in their agreements freely and irrevocably submitted to the exclusive jurisdiction of English courts and appointed an agent to receive process on their behalf. The agent was duly served but did not enter appearance, and none of the respondents applied to set aside the default judgment. Having chosen a particular mode of service, they could not avoid it. It was too late to challenge service of process in the original suit at the registration stage.

p. 4
03

Interference with the discretionary orders of the High Court

Holding

The Commissioner of Assize was exercising a discretion when he granted the registration orders and no error in that exercise was detected to justify appellate interference

Reasoning

The Court reviewed the manner in which the ex parte application was brought and determined and found no error in the exercise of the Commissioner's discretion. An appellate court does not interfere with discretionary decisions merely because it might have reached a different conclusion; an error must be shown. None was demonstrated here.

p. 4

Legal principles established

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  • Where parties have irrevocably agreed in writing to submit to a foreign jurisdiction and appointed an agent for service of process, service on that agent is valid service and a default judgment so obtained is registrable in Kenya under the Foreign Judgments (Reciprocal Enforcement) Act
  • An appeal may only be brought by a person who discloses how he is connected to the respondents or how the orders of the High Court affect him; locus standi requires material demonstrating such connection

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C. No. 1305 of 2001 (OS)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a decision of the High Court (Foreign Judgments (Reciprocal Enforcement) Act, Cap 43 registration proceedings)

Relief refused

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Setting aside the High Court orders registering the English judgment

The respondents had contractually submitted to English jurisdiction and appointed a process agent; the judgment remained properly on record and no error in the exercise of the Commissioner's discretion was detected

p. 4

Appellant's challenge to service through an appointed agent

Corporations may be served in accordance with agreed modes; the issue was raised too late and the judgment was not set aside in England

p. 4

Costs

Appeal dismissed with costs to the 1st respondent who participated and opposed the appeal

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The appeal has no merit and we dismiss it with costs to the 1st respondent who participated and opposed this appeal.
p. 4Final orders - dismissal of appeal
That agent was duly served with process but did not enter appearance to the claim. Even after judgement was entered in default none of the said respondents moved the English court that had entered judgement to have it set aside and the judgment remained properly on record and the 1st respondent was entitled to move the High Court of Kenya for registration of that judgment in Kenya.
p. 4Validity of service on appointed process agent and registrability of foreign default judgment
The appellant, acting in his individual capacity filed a Notice of Appeal and the Appeal without disclosing in any way how he is connected to the respondents or how the orders of the High Court affect him.
p. 3Locus standi of non-party appellant
We think that it is rather late in the day for the issue of service of process in the original suit to be taken here.
p. 4Late challenge to service in the original foreign suit

Issues in the judgment

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minor

The judgment inconsistently names the statute governing registration, calling it both the 'Foreign Judgments (Reciprocal Enforcement) Act' and the 'Foreign Judgements (Reciprocal Jurisdiction) Act'

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamlesh Mansukhlal Damji Pattni v Starwood Hotels & Resorts Worldwide In & 7 others [2016] KECA 261 (KLR)", Case Analysis (2016). Civil Appeal No. 324 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/261/eng@2016-09-30

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.