REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS CAUSE. 09 OF 2008
IN THE MATTER OF THE FOREIGN JUDGEMENTS
(RECIPROCAL ENFORCEMENT) ACT (CAP 9)
NAIROBI OBTAINED IN MISCELLANEOUS APPLICATION NO. 556 OF
2008 AND DATED THE 23RD DAY OF JULY, 2008
(RECEIVER/MANAGER OF MANDEEQ AFRICA LIMITED (IN RECIVERSHIP) FOR REGISTRATION OF THE SAID ORDER IN THE HIGH COURT OF UGANDA AT KAMPALA
BEFORE HON LADY JUSTICE M.S ARACH-AMOKO
This is an application under S. 3 of the Foreign Judgments (Reciprocal Enforcement) Act, Cap 9 and Rule 4 of the Foreign Judgments (Reciprocal Enforcement) Rules (hereinafter referred to as the “Act” and the “Rules”) for an order that:
(a) the order of the High Court of Kenya at Nairobi obtained in Misc Application No 556 of 2008 dated 23rd July, 2008 be registered by this Honorable Court.
(b) Provision be made for the costs of this application.
The grounds for the application are set out in the affidavit in support of Michael Ndichu Mburu filed on 4th August 2008 in this Court. They are briefly that:
a) On 23rd July, 2008 the Applicant obtained an order in the High Court of Kenya at Nairobi, whereby he was allowed inter alia to attach all the assets of Maandeeq Africa Ltd (In Receivership), charged under a debenture dated 5th September, 2007;
b) To date, the whole amount secured under the said debenture is outstanding.
c) After the said order was issued, most of the assets subject of the order were fraudulently transferred into Uganda by the directors of the Debtor without the applicant’s knowledge,
d) The said order is capable of being enforced in the High Court of Kenya at Nairobi.
e) If the order were registered in this Honourable Court the registration would not be liable to be set aside in any proceedings.
f) It is in the interest of justice that this application be granted to enable the applicant to attach the said assets within the jurisdiction of this Honourable Court.
The company defaulted in its obligations to the bank under the said debenture and the bank, on or about 17th July, 2008, put it under Receivership and appointed the Applicant Receiver/Manager.
On the 23rd July, 2008, the applicant obtained an order of the High Court of Kenya at Nairobi allowing him to attach, seize, repossess, collect, inspect and or take possession and or control for the purposes of preservation and accounting, all the assets of the company which had been charged under the debenture. The total amount due and owing including interest is Kshs 89,599,990 (principal) plus Kshs 24,236,9997 (accrued interest) which is equivalent to UG shs 2,732,087,688 ( at the exchange rate of Kshs 24 per 1 Ug. shs), hence this application.
The question for determination by this Court is basically whether the application complies with the conditions set out in the Act and the Rules. Section 3 of the Act provides that:
“(1) A person, being a judgment creditor under 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, ………………….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-
b) It could not be enforced by execution in the country of the original Court”.
Court. A certified copy is attached to the applicant’s supplementary affidavit. It was issued under the seal of the Milimani Commercial and Tax Division at Nairobi High Court on the 23rd July, 2008. Kenya is a member of Commonwealth to which the Act applies. This is by virtue of the Foreign Judgments (Reciprocal Enforcement) (General Application) Order, SI No. 35/2002.
This Court is also enjoined to take judicial notice of the Commonwealth territories under S.56 (i) of the Evidence Act and takes judicial notice of that fact in respect of the Republic of Kenya.
As for the Rules, Rule 4 requires that:
(ii) that at the date of the application the judgment has not been satisfied in part and if so, satisfied in part the amount of money remaining unpaid,
(iii) that at the date of the application the judgment can be enforced by execution in the original Court and that if the judgment were registered the registration would not be liable to be set aside under section 5 of the Act.
c) a statement as to the full name, title, trade or business and the usual or last known place of residence or business of the judgment creditor and the judgment debtor respectively as far as known to the deponent; and
d) a statement of the amount payable under the debt expressed in Uganda shillings calculated at the current rate of exchange.
(b) such other evidence with respect to the matters referred to in sub rule(3)(a)(iv) and (b) of this rule as may be required having regard to the provisions of any other statutory order made by the Minister under section 2 of the Act extending the Act to the country of the original Court.
The affidavits also contain the interest due that is, KS 24,236,997 as well as the total amount in UG shs of shs 2,732,087,688. The registered place of business, Debtor and the Creditor is also stated.
Accompanying the supplementary affidavit is a copy of the judgment certified and sealed by the Deputy Registrar of the Kenya High Court at Milimani Commercial Court, Tax Division. A copy of S1 No. 35/2002. that is, the Foreign Judgments (Reciprocal Enforcement) (General Application) Order 2002 was also availed to this Court. It provides in S.2 that:
“2. Part 11 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 foreign countries.
On the basis of the above the Court is thus satisfied that the provisions of the Act and the Rules have been complied with:
(1) Leave to register the judgment of the High Court of Kenya obtained on the 23 rd July 2008 in Misc Application. No. 556 of 2008 is hereby granted as prayed.
3) Any application for setting aside registration of the judgment shall be made within 14 days after service of this order on the Debtor.
4) Execution of the judgment shall not issue until after the expiry of the period.
5) Costs of the applicant shall be provided for by the applicant.